First, Plaintiff has met its burden of showing a likelihood of success on the merits. Under Oklahoma law, an action constitutes a private nuisance if: (1) it invades another person's interest in their use and enjoyment of property; and (2) the invasion is both intentional and unreasonable. Nichols v. Mid-Continent Pipeline Co., 933 P.2d 272, 277 (Okla. 1996); RESTATEMENT (SECOND) OF TORTS § 822. Furthermore, whether noise constitutes a nuisance depends on all the circumstances — including the character and volume of the noise, the time and duration of its occurrence, and the number of people affected by it. Smilie v. Taft Stadium Bd. Of Control, 205 P.2d 301, 304 (Okla. 1949). At the hearing, Plaintiff presented uncontested evidence that the noise coming from Paralogia is unreasonable. Several witnesses who own or use condominiums on the second floor of the Centennial building testified that the noise was unbearably loud from 10:00 p.m. to 2:00 a.m. Plaintiff represented that during those hours the noise from Paralogia causes the windows in their condominiums to shake, pictures on the wall to vibrate and glasses in kitchen cabinets to vibrate.

50 O.S. 2001 §§ 13-14[50-13-14]. ¶ 17 Smilie v. Taft Stadium Board Of Control, 1949 OK 42, 201 Okla. 303, 205 P.2d 301, relied on by UMA and Saint Andrews, does not stand for the proposition that a lawful business or the traffic associated with it can never constitute a nuisance. In Smilie, the Supreme Court distinguished between a nuisance per se and a nuisance in fact. It being conceded that the operation of the race track was not a nuisance per se, the question on appeal was whether the trial court's determination, on the basis of conflicting evidence, that the home owners had failed to prove that the noise produced by race track operations during a limited time period constituted a nuisance was against the weight of the evidence.

Whether an activity constitutes a nuisance is ordinarily a question of fact. See e.g., Smilie v. Taft Stadium Bd. of Control, 1949 OK 42, ¶ 13, 205 P.2d 301, 307. But as with any question of fact, such issue can be resolved on summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law."

Id. at 565.Smilie v. Taft Stadium Bd. of Control, 1949 OK 42, 205 P.2d 301, 306-07 (where the reported case contains no discussion of modern decibel level public health regulations; the Court states circumstances of the case necessarily influence the decision whether a private nuisance is present based on noise caused by defendant, nuisance is based upon noise which is unreasonable in degree, "and reasonableness in this respect is a question of fact"). ¶21 Some courts have made a distinction between unreasonabless of the injury to plaintiff as opposed to unreasonableness of a defendant's conduct causing the injury.

Because I believe that the plaintiffs failed to prove that the racetrack would be a nuisance per se, I believe the trial court erred in enjoining its completion. The following cases support the general view that an automobile racetrack or drag strip is not a nuisance per se, although it may under particular circumstances become a nuisance per accidens: Hooks v. International Speedways, Inc., 263 N.C. 686, 140 S.E.2d 387 (1965); Jones v. Queen City Speedways, Inc., 276 N.C. 231, 172 S.E.2d 42 (1970) (the operation of a motor vehicle speedway is a lawful enterprise, and its operation is not a nuisance per se, but under varying circumstances, the operation of a speedway could be a private nuisance in fact); Smilie v. Taft Stadium Board of Control, 201 Okla. 303, 205 P.2d 301 (1949); Bedminster Tp. v. Vargo Dragway, Inc., 434 Pa. 100, 253 A.2d 659 (1969). There is another reason why I believe that the injunction should not have been issued in this case.

The respective contentions must be considered in light of well established rules of law. In Smilie v. Taft Stadium Board of Control, 201 Okla. 303, 205 P.2d 301, it is stated: "The granting or refusing of an injunction rests to some extent within the sound discretion of the trial court, and its order and judgment in refusing to grant an injunction will not be disturbed on appeal unless it can be said that the court abused its discretion or that the judgment rendered is clearly against the weight of the evidence."

A race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i.e., a nuisance in fact. Kohr v. Weber, 166 A.2d 871 (Pa. 1960); Smilie v. Taft Stadium Board of Control, 205 P.2d 301 (Okla. 1949); Rohan v. Detroit Racing Asso., 22 N.W.2d 433, 166 A.L.R. 1246 (Mich. 1946); 66 C.J.S., Nuisances 31, pp. 784-5.

Generally speaking, whether a noise is a nuisance depends on the nature of the locality, on the degree of intensity and disagreeableness of the sounds, on their times and frequency, and on their effect, not on peculiar and unusual individuals, but on ordinary, normal, reasonable persons. Smilie v. Taft Stadium Board of Control, 201 Okla. 303, 205 P.2d 301; 66 C.J.S. Nuisances § 22, p. 772. There was no allegation of either noise or nuisance in the original petition.

Plaintiff claims that the guarantee was aimed at increasing the repair business for the seller, who claims that it was aimed at increasing the sale of Bulova watches. There is no definite testimony that the actions of any defendant created or were likely to create a public nuisance, as defined in 50 O.S. 1951 § 1[ 50-1]. In Smilie v. Taft Stadium Board of Control, 201 Okla. 303, 205 P.2d 301, the rule governing this court on appeals involving the question of whether or not a permanent injunction should issue was announced in the following language: "The granting or refusing of an injunction rests to some extent within the sound discretion of the trial court, and its order and judgment in refusing to grant an injunction will not be disturbed on appeal unless it can be said that the . . . judgment rendered is clearly against the weight of the evidence."

¶ 12 The issuance of a temporary injunction involves the exercise of the trial court's discretion. Truttman v. City of McAlester, 1952 OK 148, 243 P.2d 352 ; Smilie v. Taft Stadium Bd. of Control,1949 OK 42, 205 P.2d 301. Because injunction is an extraordinary remedy, the power to issue injunctions should be exercised "sparingly and cautiously, and only in cases reasonably free from doubt."