*1 OCTOBER 19Í8. TERM, Society.
Magel v. Benevolent THE et GRUET al., MAGEL Appellants, CHARLES LOUIS, a OF ST. LI BENEVOLENT SOCIETY Coporation, Respondents. et al., Appeals. Opinion 3, 1920. Feb. Louis Court of Filed
St. Bowling Alleys: Injunctions: Improper Baths: Use of 1. NUISANCES: Language: Sufficiently Specific. an action Decree In Indecent Not enjoin bowling alleys, by property shower use owners to building nuisance, baths, etc., adjoining the de- held in an as a specific, sufficiently not where it did not , cree was definite expose their as use of baths so order defendants to cease the any yard plaintiff’s view one in back nude bodies language enjoin loud, boisterous, obscene did use using while the baths. Specific. Injunction Decree Be An 2. INJUNCTIONS: Must specific inform the defendants what should be definite and so as to they do, reason that can what cannot also specific impossible it to be unless is definite will be contempt charge. for a basis Injunctions: Bowling Alleys: May 3. Noises Be Abated. NUISANCES: bowling by enjoin property In an action owners to the use of alleys, baths, building nuisance, etc., adjoining shower an evidence, held, under the manner in which they produced noises, and constructed such conducted through plaintiff’s premises, which were carried the walls to unnecessary, by to constitute that such is an entirely expenditure of the nuisance $600 could be abated. Property: Prejudicially -: Own 4. Use One’s Must Not Affect right Eights person of Others. has the the exclusive While a property right enjoy dominion his own it for all over customarily yet purposes property enjoyed, for which these rights subject qualification the use to which one puts his must be reasonable and such not ma- as will prejudicially terially rights affect the of others. Opportunity May Perpetual Injunction. -: Be Abate Given: bowling alleys, In an action owners to the use of baths, etc., adjoining building, shower the evidence where expenditure discloses the nuisance can abated $600, will, perpetual granted, defendants before given opportunity by changing reasonable to abate alleys. construction REPORTS, APPEAL 203 MISSOURI Liquor Sunday: Equity Injunctions: Will Net -: Sale of Enjoin *2 In owners Commission Crime. an action enjoin bowling alleys, baths, etc., in an ad- the use sbower joining building there was evidence as a where no connecting created, such as other nuisances noise bowling alleys, baths, the use boisterous loud language illegal Sunday, obscene sale equity injunction grant a court restrain- not authorized ing enjoin liquor, the sale of to do for so would be court the commission of a crime. Appeal City from the Circuit Court of St. Louis. Hennings, Judge.
—Hon.
G.
Thomas
(with directions).
(cid:127)Reversed
remanded
August
appellants.
Wale and Chas. Krone
F.
(1)
pleadings
plaintiffs
The
and the evidence for
complete
make
convincing
out a
case of nuisance
entitling
injunction
equity
prayed
them to an
with-
any preceding judgment
declaring
out
at
law
seq.;
nuisance. Baker McDaniel,
v.
178 Mo.
467 et
447,
App.
125
Morton,
Hall v.
Mo.
315-322; Blackford v.
App.
Bradbury
132
Co.,
157;
Heiman
Mo.
Co. v.
App.
Hayner
Laclede
128 Mo.
Co.,
v. Excelsior
96;
App. 691;
Ry.,
Co., 129 Mo.
Fischer v. Missouri
135
App.
App.
37-49;
Co.,
Mo.
Powell v. Brookfield
104 Mo.
Hugenslock
195;
Beck v. Perd Heim
167 Mo.
Co.,
713;
v.
222;
163
Mo.
Nishnabota,
Sommers,
Paddock v.
237;
Louis,
102
Perdin v.
28-115;
Mo.
St.
131 Mo.
McNair
8
Biddle,
Anderson,
v.
Mo.
Holland v.
257;
Sharkey
55;
38 Mo.
Newham
Mo. 382;
79
Kenton,
v.
647;
91
v.
McDermott,
v.
Mo.
.Schneider
175
Patton,
(2)
injunction
The
Mo. 684.
of a
terms
must
sufficiently
specific
definite
to enable
those bound
they may
they may
what
do
what
to know
open
not do, and must not leave
con-
difference or
doing
they may
troversy
doing
or not
of acts as
complaint
may
not have the
which the
avers
effects
specific
are the result
acts or definite conduct
pleaded.
It
not
if
will
do to
acts
should
337'
OCTOBER TERM,
allegations
are that
disturb
when
certain
specific
Mo.
do
re
179
acts
disturb them.
In
Heffron,
Rumsey
People’s Ry.
App.
Co.,
v.
658-659;
Milten-
226-227;
Mo. 223,
Mo.
Evans v.
174;
Gibson,
berger
Lewis,
71;Mo.
Straeten
Morrison,
v.
Ver
v.
judgment
pass
(3)
is-
The
must
on the
Club, 576-602; Barnett, Haggart 43; v. 137 Kissel v. Stehlin, Mich. Ind. 385; 156 ex Lamb, Ind. State 237 Mo. Lewis, 437; rel. v. 2331 App. Realty 456; Crockett, Co. 158 Mo. Sullivan v. Uhrig, App. v. 14 48 A. 578-581; 413, State Mo. L. R. (6) liquors, coupled The sale of 596. lawful when with profane language disorderly conduct and about premises at which, which a sold, nuisance, is special private injury property, when it inflicts will enjoined at the State rel. suit of ownér. 1918), ex (April 696; Kleinschmidt Moon 202 v. S. W. App. ex rel. v. 194 Moffet, State Mo. Kissel v. 286; Springfield 233; T56 v. Lewis, Ind. State Gas 204 Co., (7) alley S. The use of a connection W. 203 A.—22 M. REPORTS,
338
203 MISSOURI APPEAL
premises
dramshop
illegal
used as
sale
a
illegal
liquors,
per
itself
is
nuisance
se. R. S.
Supreme
may
(8)
1909, sec. 7224.
Court
alter
judge
or amend
rendered
make
trial
pleadings,
to the
it conform
evidence
demands of
Pettingill
equity. Darrier
v.
Darrier,
OCTOBER 1918. 339 TERM,
Magel
v. Benevolent
findings
on
Chancellor
all
fact
issues
findings,
wrong,
manifestly
will not disturb his
unless
had
judge
the witnesses before him
he
could
appearance
credibility
from their
demeanor
Yaughan
Yaughan,
447;
the stand.
Wyrick Wyrick,
v.
218 Mo. Trust Sedden v. Co., 146 Mo. App. L. and S. v. 1261; St. R: Co. Yankee, F. 140 Mo. App. (4) Cyc, p. 274; 29 Qualified 1253. decrees are ought person for the be freedom one not commended, right to be curtailed more than the of relief other The relief to be demands. awarded in the sound rests appellate court, discretion of not courts will interfere with of the trial courts decisions unless clearly Sharkey abuse of that discretion is shown. v. 91 McDermott, Mo. Blackford v. Construction 657; App. 157; Mo. Co., 132 Schaub v. Construction Co., Cyc, pp. (5) 122; 108 Mo. An 1258. in junction granted will not where been has good partially unless it been faith, abated has but danger abated or there is itsof recurrence. In case at changes bar certain constructional made in the alley, hearing begun, after had with the knowledge parties. of the court consent of The that there court found such noise caused bowling alleys plaintiffs. disturb 2 Wood (3 Ed.), p. Cyc, 800; sec. Perry Nuisances, 1250; (6) granted The Howe, 125 Iowa, v. language with reference court baths, prayer almost verbatim conduct follows relief as ’ plaintiffs petition. out If decree is set errone appellant by the clearly error invited in not ous, setting prayer relief desired, out in complain heard thereof. Price v. now cannot Breckénridge, 92 Mo. Schaub Con 378; Town of Ry. Mitchell 1095; 82 S. W. v. Wabash Co., struction prayer (7) for relief in 97 Mo. Co., *5 n 203 MISSOURI REPORTS, APPEAL
Magel v. Benevolenc petition does not ask that sale defend liquors of ants’ now premises should not they enjoined; to complain heard the fact thereof is of mention no .made in the decree. If sale ever constituted such nuisance, operation it been forever abated has national not in of and this court prohibition, will now is an idle when there dulge formulating decree, S. enjoin. Co., v. Construction Sehaub nothing 418; 1096; W. 1095, Howe, v. 125 Iowa Perry of dispensing Pomeroy’s Equity, 1357. (8) sec.- all respects on defendants’ premises was lawful no But even and constituted nuisance. if be a created in manner would obtain an .public before could nuisance, have must establish that suffered they special kind of thereby different injury locality. inasmuch suffered others And association, a member plaintiff, who defendant helped and drank to create such there, thereby thereof. if it not one, complain he be heard should v. Glaessner Cavanaugh, App. 102; v. 33 Mo. Warren McDaniel, Mo. Baker v. Brewing Association, 100 509; 447; 720; 178 Mo. Bothe B. & 181 Mo. Q. Co., R. C., The defend Hodson v. Walker, (9) 170 Mo. App- incorporated ant organization, not is a bona-fide-social violate or evade designed profit, its organization and the sale law, liquor law within not a dramshop violation members the Revised Statutes section 7188 meaning up institution cannot be closed and defendants’ es patrons, of its for individual acts enjoined .isolated that defendants been when pecially established has a highly building their affairs and maintained rel. Louis St. State ex manner. proper respectable Mo. Moffett, rel. 125 'Mo. State ex Club, 308; App. 286. purpose an suit, BIGGS, equity C. This
n maintenance abate to' alleged nuisance.
OCTOBER 341' TERM, *6 Society.
Magel v. Benevolent plaintiffs, being husband are the own- wife, and being group dwelling ers called flats, houses known as numbers 2708-2710 2714 Arsenal street, and portion mainly city which of the used Louis St. plaintiffs for residences stores. The small reside and upper group the in flat of said and the one ad- joins occupied by owned and the defend- ants. organized
The defendants are under the statutes corporations benevolent or educational and charter- are ed and are such, sometimes social One clubs. called directly of the defendants owner of the plaintiffs’ property, west extending from the plaintiffs’ property to the of Iowa corner and avenue, on which the defendants have erected and buildings maintain known Hall and Savíss Swiss' Turner Hall. foregoing
In addition facts, bill sub- alleges, three-story that building known as stance adjoins plaintiffs’ Swiss Hall the western wall twenty for a distance of feet; flats some that there is plaintiffs’ garden also to the west of flats a maintained by the and from Ar- defendants which extends back senal street short distance the defendants’ build- ings; part that eastern wall aof of the Hall Swiss up against plaintiffs’ stands the west flat wall of the building that basement of this owned and flats; operate maintained defendants, defendants pits bowling alleys, four of which at against eastern end the east Avail defendants’ buildings plaintiffs’ wall; which is in contact with west using that the defendants’ members in these bowl- ing' from throw balls -«the western end building eastern end of their so noise through plaintiffs’ turmoil to and communicated flats, west bowling alleys wall the use of the by the maintained defendants cause great disturbing peace noise turmoil, of the prevent sleep- and their tenants, them EEPOETS. MISSOÜBI APPEAL
ing, property, permanent- reduced the value of their property. ly injure their alleged the defendants were
It is further leaving room where habit of the the they windows open, and which windows maintain shower baths plaintiffs’ exposing yard, face bathers view; maintain a bar on defendants premises dispensed intoxicating where Sundays week-days, mem- defendants’ habitually continually, in the use baths, bers bar, boisterous, and also at the use loud, *7 profane language. obscene and enjoined prays from
The that the bill defendants using bowling alleys using the the baths, and said in plaintiffs’ annoyances to injuries such manner as cause and dis- from the use of either and and turbances compliance changes the without in condition may appear as it of their situation and construction require proper preclude injury to make to defendants to plaintiffs’ rights, of the indecent, use from the to and profane complained language of, and herein obscene prem- any all acts in the use of the from and other and whereby peace, the ises constructed and as used, now plaintiffs may been, comfort health have or and of their be hereafter value disturbed, impaired to remove their caused and tenants general premises, relief. their and for general denial, and also answer The defendants large up sum invested set have defendants apparatus property; money used type prevent to is of modern the most plaintiffs pins striking walls, balls they complain only sell defendants failed to because adjoining lot. a decree for After the court entered hearing injunction to the plaintiffs, granting as to them an use of also to indecent use of baths disorderly language denied conduct, but indecent request use of the as to the OCTOBER TERM, Magel Society, v. Benevolent illegal as to sale of the defend- premises. ants’ being unsatisfactory
This decree brought have the case here for contend- review, ing language of the decree is ineffective enjoin purports enjoin, what and further it was enjoin error for the court refuse the use bowling alleys illegal liquors. and also the sale
As to ineffectiveness of the decree to enjoin. purported what it omitting parts, decree, the formal
follows:
“The court doth further that the find, defendants, organizations and the members of the defendant have used the installed baths used connection with plead- the ings of said defendants, described City
and known Arsenal No. 2726 in the Street, permitted of St. Louis, Missouri, in such manner, language their members to hearing use such in the plaintiffs, as nuisance; to constitute a and that practice continuance bathers result will injury in an plaintiffs; in the defendants, garden use of the north of their side speak leaving members in such loud hall, *8 language boisterous tones and at times use that amounts to they nuisance plaintiffs; to and should be using restrained from their in to manner, plaintiffs. injury of adjudged it “And is therefore, ordered, decreed and permanent injunction granted that a court, be organizations and herein, the defendant their and hereby and each of them members perpe- be, and enjoined tually using and restrained from baths in plaintiffs annoyance such manner toas cause and dis- using profane turbance, and from indecent, and obscene language, premises, on and about their in, so to destroy peace, plaintiffs, comfort and health of occupancy enjoyment premises in use, of and their REPORTS, -344 203 MISSOURI APPEAL petition tbe Nos. described in known as and City Mis- Lonis, in tbe of St. Street, 2714 Arsenal ” souri. speci- decree definite An should they ,fic can inform the what so toas defendants , they reason that un- for the what cannot and also do, impossible specific for it it will is definite and less . para- charge. contempt The first it to be basis graph finding be a fact as of the decree of seems not set out Avhat the but does did, defendants by the shown manner in the baths used which were finding merely baths evidence. The with- such a manner as to constitute used in finding Being stating they out were used. how allegation plaintiffs’ petition was to of prove plaintiffs’ tended the effect and the evidence allegation, baths with the that the bathers used n back plaintiffs’ yard, open adjoined windoAvs n thereby exposed plaintiffs’ bodies. their nude view question Presumptively court found on .the having plaintiffs, so use the baths in behalf should when defendants came .found n ordered to the use baths have been cease so n anyone expose view nude bodies to yard, en- further have been back and should joined using permitting boister- loud, the use from -language using ous obscene baths. while finding the decree court In the facts in n garden found that the while defendants n leaving hall, north of their and also side spoke , at times used tones and loud boisterous language plaintiffs, to a nuisance to amounts using prop- should be restrained .that erty injury plaintiffs. Pre- in such manner to the paragraph sumably language in the referred profane finding and obscene the indecent, facts is against language para- in the decreed second regard. graph, we in that think sufficient *9 OCTOBER TERM, quite The record before us contain- voluminous, ing something pages, over 300 use- it would no and serve purpose attempt ful to set out the evidence. us bowling alleys, appears
As to the that there were 24 different the clubs societies that meet Swiss at bowling alleys Turner prac- Hall; the were used tically evening every especially in the week, Satur- days Sundays up night until hours in late the running morning; and on occasions into the hours prior alleys bowling of summer 1916 the operation had been time, some but account of the fact'that before that there time north was partition south inwall Hall basement of Swiss separated plaintiffs’ bowling alleys which from west wall defendants’ east wall feet and several west prevented by therefrom and which noises caused bowling disturbing plaintiffs plaintiffs, from complained. had not appears during
It from evidence that the sum- partition mer of pits wall was removed pins balls of where the break and eastwardly collide so as moved cushions bring nearer to the wall them west against almost defendants’ east wall. produced by the effect the noises
As of bowling, plaintiffs the evidence consisted .testi- mony' neighbors, rela- themselves, tenants, their general way, friends. In a tives, established clear produced case to the effect that the noises premises intolerable; rendered condition their kept peace plaintiffs that it disturbed sleeping .night. at least one at tenants ’ generally evidence of the witnesses was rumbling that the effect caused a sound at first resembling alleys, down the ball was started thun- der followed a loud noise caused pins. contact of the balls with the A real estate man familiar with the who values neighborhood, testified *10 REPORTS, APPEAL 203 MISSOURI Society. plaintiffs’ noise, lessened value of was tbe plaintiffs-’ that unless testified of two tenants premises. they from the would move noise was abated produced only tended to render noise immediately unen- flat joyable, east defendants’ of plain- it also extended to other flat but east. tiffs which further to the was progress suggestion of the at the During the trial apparently concurred counsel, defendants’ was plaintiffs’ counsel, cause was court and adjourned purpose permitting the defendants for the changes make certain structural perhaps they abate the noise. with the idea that could put about at a cost of To this the defendants $70 end pits in ing tile wall at the of the bowl- a hack hollow extending ceiling floor to against up flush the defendants’ east wall. There almost perhaps space few between was of a walls, inches question. contradictory How- but the evidence on this upon being testimony the trial resumed ever, great plaintiffs just the effect that the noise as was as it had been before. produced being a number of witnesses,
Defendants organizations, contradicted who members of various testimony plaintiffs’ extent the reference to some produced by bowling, of them but none the noise plaintiffs’ any or in flats in the house his were at time place. bowling took Several of them time at the yard while the into the back went progress, they testified that could not detect and' was in going that the on. fact engineer consulting produced as a Plaintiffs wit- expert question qualified on the sound who as an ness, practical effects. conducting and sound bodies question hypothetical in- in answer He testified presented by volving evidence, facts through bowling would communicated noise of buildings residence of the into the the walls greater plaintiffs extent than it would considerable OCTOBER TERM,
Magel v. Benevolent to the surrounding communicated air; possibly great; communication would be ten times buildings that the would act a conduc- walls tor of the sound waves. The witness further testified sounding that all walls act as a if board have plain prop- surface, and where the wall between erty of and defendants reinforced ad- *11 glazed probable a tile it wall, ded hollow that is that this would cause the sound be carried more with intensity.
The evidence is uneontradicted not neces- that sary the defendants in order to maintain what alley regulation howling pits a to have the known as alley produced plain- the where noise the close the alleys wall; tiffs’ that at about the a cost $600 westwardly could he a sufficient as moved so distance the to obviate plaintiffs; noise that the causes disturbances partition
that a new wall north south westwardly in could constructed the from basement the east defendants’ wall a distance so sufficient space leave air the a considerable two walls between against pits bowling alleys the the this new partition wall the nuisance obviated. would he reading appears
From the a of the record it in which these manner were conducted produced and constructed such noises which were' through plaintiffs’ premises carried the walls to is unneces- to constitute a and that such nuisance, as sary, expenditure can an $600 entirely abated. Snyder 48, In 29 W. Va. court en Cabell, ap joined skating maintenance a rink where it peared materially the noise from the rink disturbed persons ground residing proximity on in thereto, same that the was a nuisance. May Cape May Cape
Also M. E. Church v. Eq. restrained 257, etc. N. J. court Grain, 73 Co., adjacent operation skating a of a rink situated parsonage, ground operation church and on the its APPEAL REPORTS, 203 MISSOURI week-day appearing a nuisance, constituted account church interfered with on .services noise, of the also that the Pastor unable was pursue only study, his few work his from the rink. feet Margaret’s Stephens,
Likewise in St. Church v. injunction granted against Ont. court 185, managers skating restraining them rink, caus- ing played, thereby disturbing a band to be church serv- adjoining on lot rink, a church situated ices ground the noise created constituted nuisance. Shreveport Society,
In v. Liederkranz La. (N. S.) denied the' 40 R. A. the court L. .while ground evidence failed to bowling alley show that conducted defendant says: the court ' testimony “If showed that record (operating alley) defendant disturb- acts of neighbors physical iñ- ed comfort to an *12 duty jurious it become our would to restrain extent, ” defendant. . Pape App. Institute, Div. Also in v. Pratt although recognized Supp. the court that 111 N. Y. yet, bowling alley not in itself a since is alleged located and conducted the one at bar was to be being of a constitute one, such a manner to in granted continuing to restrain was an nature, maintenance. its person right to true that a it has
While property and the own over his dominion exclusive prop- purposes right enjoy for all which such to rights enjoyed, yet customarily erty sub- these puts ject qualification use which one that the property not such as will be reasonable must his materially rights prejudicially of others. affect (3 by work on Nuisances in said Mr. his isAs Wood Ed.), page 3: OCTOBER TERM, “Every person portion yields right of his ab- property, recog- solute dominion, and use of his own rights nition of and to, obedience others, so may enjoy property their also others without unreason- able hurt or hindrance what reason- As to ais .... necessarily depend use of must able one’s upon the case; circumstances of each for a use particular purpose particular way and in a in one local- ity might that would be lawful reasonable be un- lawful and a nuisance in another.”
In the instant case owned they occupied locality which as their home in city given which was the main over residences and small stores. "Wethink the evidence disclosed right reasonably enjoy this home aas materially unnecessarily interfered so operating in the' manner of defendants bowling alley way which was constructed. and not be It necessary should the maintenance alley, of this but of the evidence in view expendi- discloses that the nuisance can abated ture heretofore stated, $600 we think the defend- given opportunity ants should be "a reasonable abat- ing changing th nuisance construction of their bowling alleys; that in event this not. done then the use maintenance of perpetually enjoined. should question illegal enjoining
As sale of intoxicating liquors, premises on defendants’ on Sun- days, dispensed the evidence shows organizations all those members the various who membership held done at serv- cards premises. may may ice on defendants This bar *13 a of rave constituted offense under the laws criminal necessary Missouri, we do not find to decide question here. The evidence does show dispensed liquors Sunday fact these on by the the nuisances disclosed evidence. caused that were enjoin equity jurisdiction A court to has no com- of REPORTS,. 203 MISSOURI APPEAL v. ex rel. Howe Scale State Co. [State of a ex Thrash Lamb,
mission crime. rel. v. plaintiffs’ 665.] All the evidence 437, Mo. S. W. prove tended to reference to matter was liquors dispensed intoxicating these various societies Sunday that this constituted their members no evi- of There was offense under laws Missouri. connecting created, such nuisances dence other bowling alleys, the use of the baths noises from language with obscene and the loud boisterous grant Sunday. illegal sale of To the plaintiffs asked for would us to relief equity of This court commission crime. by the dealt with is matter will not do, criminal courts. the Cimmissioner herein stated
For reasons judgment be reversed and recommends enter cause remanded with directions ex- herein the views behalf pressed. consistent opinion foregoing PER CURIAM: The Biggs, judg- adopted opinion the court. C., is accordingly reversed of the circuit court is ment a decree enter remanded with directions the cause herein with the views consistent in behalf of JJ., con- expressed. Reynolds, Becker, Allen and J., P. cur. relation at MISSOURI, OF
THE STATE Attorney JONES, Circuit G. SEEBERT Respondent, THE HOWE Louis, of St. CITY Appellant. ILLINOIS, OF SCALE COMPANY February 3, Opinion Appeals. Filed Court St. Louis Open Court Need Made Motion to When Quash: EXECUTIONS: Missouri Revised Statutes Be Section Not Verified. during the defendant, in vacation enabling when the court petition any judge apply veri- court, thereof recess of