Opinion
Decided April 27th, 1933.
1. Defendant's baking business, though in itself lawful and not a nuisance per se, must be conducted with due regard to the rights of the adjoining property owners, which include the right to reasonable rest during that time set apart for the purpose.
2. While the defendant's business was established long before complainant came into the neighborhood, and the right to object is accordingly somewhat restricted, the bakery had been enlarged since that time and it cannot be said that complainant was required to anticipate such enlargement and submit to the increased annoyances incident thereto.
3. The fact that the vice-chancellor designated the neighborhood as entirely residential and not as partly residential and partly a business neighborhood is not of sufficient importance to change the result of his conclusions (that the bakery was not operated in a fair and reasonable way with regard to the rights of the complainant who lived next door) as to the essential facts in the case.
The defendant appeals from a final decree enjoining a nuisance in the operation of his bake shop because of smoke, excessive noise and the maintenance of ash cans in the alleyway between her premises and that of the complainant. Said decree was advised by Vice-Chancellor Berry, who filed the following conclusions:
"The complainant purchased the premises occupied by her from her father within a year or so prior to the institution of this suit, and he had purchased it a comparatively short time previous thereto. Long prior to the acquisition of title by the complainant's predecessor in title a bakery was operated in the defendant's property. This bakery was considerably enlarged in 1930 by the building of an addition at a expense of some $50,000. There was apparently no complaint by the complainant or anyone else respecting the operation of this plant prior to its enlargement. The complaints now are threefold: that a nuisance exists, first, because of smoke emanating from the smoke stacks on the bakery and which smoke, it is alleged, permeated the rooms of the complainant's property; second, excessive noise in the operation of the machinery and equipment of the bakery and loud and boisterous talking; third, the maintenance of a large number of ash cans in the alleyway in which is deposited refuse of all kinds and from which emanate nauseous odors.
"Many witnesses were examined on both sides of this controversy and, as usual in such cases, the testimony is very contradictory. The matter was finally referred to a special master who was directed to make an inspection of the premises and report to the court as to the conditions which he found. This inspection has been made and the master's report filed. He reports that at no time on the four occasions when he inspected the premises did he observe any great volume of smoke from the smoke stacks on the bakery, but that in the event of a west or northwest wind smoke might find its way into the top windows of the third story of complainant's premises; but that this difficulty could be easily eliminated by raising the height of the stacks. As to the noise in the bakery he reported that when the dough mixers are running there is produced an intense grinding sound comparable to that made by an automobile truck in low gear and that he heard these mixers in operation as late as three o'clock in the morning, and that the sound of the dough mixers could still be heard when a trolley car was passing the premises; that noise also emanated from the operation of a cake mixer but that this was of a much lighter tone and comparable to the noise of a large dynamo; that there were also `sounds of the banging of wooden trays and a general class of noises which might be described as clatter persisted through the night, sometimes in greater volume than at others and occasionally ceasing altogether. In addition, the voices of the employes could be heard raised apparently because of the noise in the bakery and because they were speaking to each other while at some distance apart. Occasionally during the night these voices became quite loud, sometimes with laughter and sometimes in tones of complaint or anger. In summer months when the windows of the bakery adjoining the alley were all open all of these noises were accentuated; in October, when the windows were only partly open and some entirely closed, the situation was better.' The master also reported that the only noise in the neighborhood during the middle of the night was that coming from this bakery and that these noises disturbed the quiet of the neighborhood; also that after four o'clock in the morning a considerable noise was made by the defendant's distributing wagons and by the delivery of milk cans by the milkman at about the same time.
"As to the nauseous odors from the garbage cans, the master reported that he found from twelve to fourteen metal garbage cans on the west side of the alley and on the easterly edge of the defendant's property; that some were covered and some were not; that the odor emanating from these cans was not unduly offensive on the occasions when he examined the premises.
"The neighborhood in which the parties reside and in which the defendant's business is conducted is almost entirely residential except for a few stores and the defendant's bakery. The defendant's is the only business which is operated at night. The business in itself is lawful and is not a nuisance per se. If it were located within a factory district there would, I think, be no cause for complaint on the part of the complainant; but every business, however lawful, must be conducted with due regard to the rights of others. The nature of the defendant's business requires that it be conducted and the bakery operated during that period of the night when most persons seek rest and repose. In Gilbough v. West Side Amusement Co., 64 N.J. Eq. 28, Vice-Chancellor Pitney said:
"`The time when a noise is made is also to be taken into account. Mankind needs sleep for a succession of several hours, and nature has provided a time for that purpose, to wit, the night time, and by common consent of civilized man, the night is devoted to rest and sleep, and noises which would not be adjudged nuisances, under the circumstances, if made in the day time, will be declared to be nuisances, if made at night and during the hours which are usually devoted by the inhabitants of that neighborhood to sleep.'
"This language is peculiarly applicable to the present situation. While the defendant's business was established long before the complainant came into the neighborhood, and the right to object is consequently somewhat restricted, the business has been enlarged since that time and it cannot be said that she was required to anticipate such enlargement and submit to the increased annoyances incident thereto. Notwithstanding its lawful nature the defendant's business must be conducted with due regard to the rights of the adjoining property owners which include the right to reasonable rest during that time set apart for that purpose. It would serve no useful purpose for me to review the evidence which has been submitted in this cause in detail. It is voluminous. I have no hesitation, however, in saying that I think the defendant's business as conducted, does amount to a nuisance which should be restrained. I do not mean to suggest that the defendant may not conduct the operation of his lawful business in its present location, but such operation should be subjected to appropriate restrictions to protect complainant's rights. There is no doubt that the noise in the bakery may be largely eliminated if proper care to that end is taken by the defendant. Loud and boisterous talking is unnecessary, the throwing of trays and pans around the bakery at all hours of the night should be prohibited. If the grinding noises of the machinery cannot be entirely eliminated, then the windows next to complainant's property should be kept closed. I have no doubt that a large portion of the noise complained of may be eliminated if proper precautions are taken.
"As to the annoyance from the smoke, while the master did not find conditions which would warrant him in saying that they amounted to a nuisance, yet I think the testimony submitted on behalf of the complainant warrants a direction by the court that the height of the stacks be increased sufficiently so that smoke emanating therefrom will be distributed above the level of the third story windows of complainant's property.
"With respect to the ash cans in the alleyway, irrespective of the odor therefrom, and I think it must be admitted that some nauseous odors necessarily emanate therefrom, their maintenance in this alley will be prohibited. The driveway is a common one `for ingress and egress by automobile, foot or otherwise.' It is not to be used by either party for the purpose of storage of refuse or other material. The ash cans and receptacles for refuse should be moved to the defendant's own property. I will advise a decree in accordance with these conclusions."
Messrs. Kraemer, Siegler Siegler, for the appellants.
Mr. William Simon, for the respondent.
The decree under review should be affirmed.
This case involves no complicated question of law. It is largely one of fact. Appellant's counsel complains that the vice-chancellor erroneously found as a fact that "the neighborhood in which the parties reside and in which the defendant's business is conducted is almost entirely residential, except for a few stores and the defendant's bakery;" whereas the facts clearly show (says appellant) that the neighborhood is zoned for business and that Hawthorne avenue (the street upon which defendant's bakery is located) is a busy retain thoroughfare. Counsel for respondent insists on the other hand that this neighborhood is zoned by the city of Newark as a strictly residential neighborhood.
Our examination of the testimony leads us to the conclusion that it was neither an entirely residential nor entirely business neighborhood. The ground floors of many of the buildings in this locality were occupied by stores, while the upper floors were, as a rule, used for residential purposes.
It was in no sense a manufacturing or factory district. The vice-chancellor held that the defendant's business in this district was lawful and was not a nuisance per se, but found as a fact that it was not operated in a fair and reasonable way with regard to the rights of the complainant who lived next door.
We do not think, therefore, that the incorrect designation of the neighborhood by the vice-chancellor is of sufficient importance to change the result of his conclusions as to the essential facts in the case.
With this explanation, we approve the opinion of the vice-chancellor and affirm the decree for the reasons expressed in that deliverance.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.