58 N.J. Eq. 313 | New York Court of Chancery | 1899
The bill is filed to enjoin a nuisance alleged to result from ■the playing of the game of base ball in the grounds known as ■the Shooting Park, in the borough of Yailsburgh, adjoining or near the city of Newark. The Shooting Park is located 'on Myrtle avenue and Eodwell avenue, extending about three hundred and fifty feet on. Myrtle avenue and a less distance on Eodwell avenue. Complainant owns a- lot, twenty-five by one hundred feet, on the corner of the two avenues, upon which lot is his dwelling-house which has been occupied by himself and family for six years, his family consisting now of his wife, two small children and his mother. The rear of complainant’s lot (twenty-five feet) bounds on the park, but on the side of his lot towards the north another lot owned by one McAdam, fifty by
The principal annoyance arises from the games which are carried on at the-park on Sundays. The games commenced in-April and are scheduled to continue during the season at intervals tmtil after the 1st of September. Complainant’s bill prays-that the playing of the games may be altogether enjoined, and" the present application is for a preliminary injunction to the-same extent pending the final hearing.
Considering first the facts of the case as now presented by the-ex parte affidavits on both sides, I think complainant has made-out on the facts such a prima faeie case of serious annoyance as-
The same observations apply to the large number of affidavits of thoroughly credible persons ■ submitted to show that as observed by them (from the places occupied by them at the games) the games were conducted in an orderly mánner, with only occasional outbursts of'applause and without indecent or profane outcries from players or persons within the grounds. The ques
It is objected that inasmuch as the fact of nuisance is disputed, complainant is not, under the rule settled in the Coach Co. Case, 2 Stew. Eq. 299, entitled to a preliminary injunction pending the hearing. But the jurisdiction of a court of equity in relation to protection of one’s dwelling-house against nuisances-which render it uncomfortable, stands upon a different basis from the kind of injury considered in the Coach Co. Case, and this right is one which has been constantly protected in this court by preliminary injunction in a proper case, even when the existence-of the nuisance is disputed. Such injunctions were granted in Ross v. Butler, 4 C. E. Gr. 294; Cleveland v. Citizens Gas Light Co., 5 C. E. Gr. 201; Meigs v. Lister, 8 C. E. Gr. 199, and the general jurisdiction of equity to protect such rights is stated in Leonard v. Mart, 15 Stew. Eq. 416 (Court of Errors and Appeals, 1886), in which.the above cases are cited with approval oh this point.
Two other objections to the issuing of a preliminary injunction were raised. The first is the acquiescence of the complainant in the alleged nuisance by his request for facilities in viewing the games from his grounds, which facilities were for a time allowed him. I have indicated above my view of the extent to which this action, as well as his choice of location, should be considered in framing a preliminary injunction. The other objection which is urged specially against any injunction, based on the collection of disorderly persons outside of defendants’ grounds, is that the nuisance is a public nuisance only and cannot be reached by injunction at the suit of complainant. But the right to relief in behalf of one who suffers private injury or annoyance from that which is a public nuisance is well settled. The only question is as to the character of the relief or remedy, and the right to relief by injunction against the special nuisance to one’s dwelling-house by reason of crowds of disorderly persons upon the highways, drawn there by entertainments given by a third person upon his own lands for pecuniary profit, is based upon fundamental principles which have been recognized and enforced wherever they have been called in question. In Rex v. Moore, 3 Barn. & Ad. 184 (which was an indictment), Lord Tenterden says : “ If a person collects together a crowd to the annoyance of his neighbors, that is a nuisance for which he is answerable.” In Walker v. Brewster, L. R. 5 Eq. 25 (where an injunction was granted), it was held that a case of nuisance was established by the collection of a crowd on the highways in the neighborhood of grounds upon which entertainments, with music and fireworks, were given continuously for profit. In Bellamy v. Wells, 89 W. R. 158, cited in
I will advise a preliminary injunction in the form above indicated. The preliminary injunction will be granted upon the •condition that if defendants desire to appeal from the order and file a notice of appeal within ten days, complainant shall consent to so speed the hearing of the appeal, by stipulations as to filing of answer or otherwise, as will enable the defendants to bring •on the hearing of the appeal at the next term.