Opinion
January 28, 1942.
March 23, 1942.
Nuisances — Public — Stone cutting and monumental business — Evidence.
In a proceeding in equity instituted by a city against defendants, husband and wife, owners of a property in the city, as tenants by the entireties, on which the husband conducted a stone cutting and monumental business, in which there was evidence to sustain the finding of the court below that the defendant husband was conducting a public nuisance which affected all persons and properties in the residential section in which defendant's property was located, a decree enjoining the continuance of the nuisance was affirmed on appeal.
Argued January 28, 1942.
Before SCHAFFER, C. J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Appeal, No. 63, Jan. T., 1942, from decree of C. P. Northampton Co., June T., 1940, No. 6, in Equity, in case of City of Bethlehem v. Orville O. Druckenmiller et ux. Decree affirmed.
Bill in equity. Before LAUB, J.
Decree entered granting injunction. Defendants appealed.
Irving W. Coleman, for appellants.
George Weitzman, with him Daniel L. McCarthy, for appellee.
The City of Bethlehem filed this bill in equity against defendants, husband and wife, owners of a property in the city, as tenants by the entireties, on which the husband conducts a stone cutting and monumental business. The property is located in a thickly populated residential district within two blocks of the City Hall. The bill alleged that the business as conducted is a public and private nuisance. The prayer was for an injunction forbidding and abating its continuance.
The chancellor, with ample testimony to support him, found that electrical power equipment, air compressor machines and sand blasting machines for cutting and polishing granite and marble tombstones and grave markers are used in the business, that these machines make loud, clattering and buzzing noises and cause granite and marble dust, in large quantities, to permeate the air, affecting the properties of adjoining owners and interfering with the reasonable use and enjoyment of them. It was further found that the business as conducted is dangerous to the health of the people living in the immediate vicinity.
Dr. A. O. Kisner, a witness called by the City, who lives near the premises of defendants, testified that the noise of the air compressor was heard every week day from eight in the morning until late in the afternoon, that the noise was continuous and could be heard inside the house even with the windows closed. He further said it was necessary to keep the windows shut in order to exclude the dust from his house, that the dust was injurious to the people of the neighborhood, producing a catarrhal condition of the bronchial tubes and mucous membranes lining the nostrils, that the noises affected the nerves of persons living in the vicinity, and that persons required to sleep in the daytime could not do so. John H. Ogburn, a professor in Lehigh University, who lived in the vicinity, testified as to the deleterious effects of defendant's operations on himself and his wife, who suffered from a nervous condition. Horace B. Cleaveland, lubrication engineer for the Bethlehem Steel Company, testified that the dust coming from defendant's operations was in such quantity that it could be scraped off the window sills, tables and porches of his house, and that because of the noise, it was impossible to sleep in the daytime, that "it vibrates your whole nervous system." Some witnesses called by defendants said in substance that they were not annoyed. The chancellor was of opinion that their testimony was colored by their friendship for defendants.
The court found that defendant, Orville O. Druckenmiller, was conducting a public nuisance which affected all persons and properties in the residential district and issued a perpetual injunction against its continuance. There was full warrant for his so doing under many of our cases, some of which are Heinl v. Pecher, 330 Pa. 232, 198 A. 797; Thomas v. Dougherty, 325 Pa. 525, 190 A. 886; Baker v. Moore, 311 Pa. 38, 166 A. 362; Perrin's Appeal, 305 Pa. 42, 156 A. 305; Evans v. Fertilizing Co., 160 Pa. 209, 28 A. 702.
Decree affirmed at appellants' cost.