66 Ind. App. 594 | Ind. Ct. App. | 1918
— This was an action brought by appellant against appellee to perpetually enjoin him from using a “barker” in the conduct of his business of operating an oil well on his farm which adjoins appellant’s farm. There was a trial by the court and judgment for the defendant. Appellant’s motion for a new trial was overruled, and such ruling is assigned as error and relied on for reversal.
The barker is charged to be a whistle placed on the exhaust pipe of a gas engine which is used to pump oil from the well, and it is further charged that by the use of the barker loud and shrill sounds were produced, which continued both day and night and could be heard for a distance of two or three miles; that they were especially noisy and disturbing in and about appellant’s- house and premises, where they were so loud and shrill that appellant and his family were made sick and nervous, and they could not sleep; that such noises impaired their eating, interfered with their work, impaired the comfortable enjoyment of appellant’s home, and also depreciated the value of his farm. In short, it was a suit to enjoin and abate a nuisance.
The statute (§291 Burns 1914, §289 R. S. 1881) provides': “That whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with
There is some evidence of the existence of the acts complained of, but there is a conflict as to whether they are such as come within the provisions of the act, supra. There is much evidence on the part of witnesses living in the immediate neighborhood that they were not awakened by the barker, nor disturbed by it. Some testified that the noise did disturb them' somewhat when the barker was first put in use, but that they had become used to it and were no longer affected by it. In fact, this is the character of all the testimony, except that of appellant and those occupying his house with him. And' as to them there is evidence tending to show that they were complaining of| the same physical conditions and ailments when the well was not being operated as are now claimed were produced by the use of the barker. There is some evi-[ dence from which it could be reasonably inferred that] appellant was a man of nervous temperament and| sensitive to things which were in any degree annoying or disturbing, especially to noises of the character, complained of. In short, there was some evidence] tending to show that appellant was not a person of, ordinary sensibilities and from which the court might readily conclude that he was abnormal in this respect. It also appears from the evidence that the use made of appellee’s land was not different from the use made of other lands in the immediate vicinity, as appellee was at that time only one of several farmers in the same locality who were developing their lands into oil fields, and the others were using the same device,1 appellee’s well being nearer to appellant than the others. Appellee lived about ninety-eight rods from the well and the barker was placed on the exhaust, and when the engine was running gave out forty or
Judgment affirmed.
Note. — Reported in 11S N. E. 591. Nuisance :noise with or without vibration ihcident to industrial business, 17 L. R. A. (N. S.) 287, 44 L. R. A. (N. S.) 236; what will be enjoined as interference with comfortable enjoyment of real property, 10 Am. Rep. 674. See under (2, 3) -29 Oyc 1156, 1157, 1192.