The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-25
OPINION OF THE COURT,
BY JUDD, G.. j.

OPINION OF THE COURT,
BY JUDD, G.. j.
A bill for an injunction was filed
by plaintiff in August last, to prevent
the erection by defendant of a building
to be used as a Chinese theatre. y
preliminary injunction was denied, a
demurrer overruled, and a hearing on
/ the merits was had in October. The
| Circuit Judge dismissed the bill and an
appeal was taken by plaintiff to this
Court. A synopsis of the bill is as fol-
! lows:
l. That plaintiff is the owner of
| certain premises in Honolulu situate
on King street on the hill on the Eva
side of the Nuuanu stream, which
premises are occupied as a residence.
2. That for many years past the To-
cality in which the plaintiffs said resi-
dence is situate, has been residence
district undisturbed by noisy trades
and businesses.
g. That plaintiff is informed and
believes that Lee Wal, of said Honolu-
lu, the defendant hereto, is about to
and is now preparing to build, in close
proximity to plaintiffs said residence
house to be operated and used as a
Chinese theatre.
4. That the performances carried on
in such theatres as that proposed and
now about to be built and operated by
the said Lee Wal, consists very largely
of pounding on gongs and drums, blow
ing upon various wind instruments, and
performing upon various stringed in
strumentS the names of which are I'M
known to the plaintiff, but which pro-
duce harsh, Strident and discordant
tones of great volume and continuity.
5. That the time and times during
which such performances are usually
enacted is between twilight in the even
ing and midnight.
6. That the volume, discordance and
continuity of the noise so produced at
such performances is so great that it
will be distinctly heard upon plain
tiff's said premises and will render
sleep and the peace and enjoyment of
life upon plaintiffs said premises, to
which he is lawfully entitled, an i'm
possibility while the same continues
z. That if the said defendant is al
lowed to so erect theatre and conduct
performances therein as aforesaid, it
will cause irreparable injury to plain
tiff and to his rights as the owner and
occupier of said premises as aforesaid
by destroying his peace and quiet and
injuring the value of his said prem
ises.
The Circuit Judge found that the evil
dence, which consisted mainly of depo-
sitions of some sixteen persons resid-
ing in the locality, that the allegation
in the bill as to the nuisance was cover
whelming in it's force and sufficiency,
and stands uncontradicted, and that
the plaintiff, who resides under similar
circumstances with the deponents
would be subject to the same annoy
ance, but denied the injunction because
the plaintiff had failed TO sustain the
allegation that his residence is situated
in a locality undisturbed by noisy
trade and businesses. The Judge re-
marked that recognizing the fact that
we are cosmopolitan community, to
say that what is positive pleasure and
enjoyment to one portion of the popu-
lace should be decreed a nuisance per SCI
to the other would be going too far
without very satisfactory proof that
heretofore the location in which the
plaintiff resides had been free from
such disturbances as he now complains
Of
We do not understand that any such
Dui ACoCo upOh party SSShluS 10
enjOin a nuisance. Persons may COM |
plain of nuisance even if they erect |
their dwellings where they may be af- |
fected by a nuisance already existing. |
An offensive trade or business may
be established and carried on at a point |
so remote from others as in no way to |
disturb others, and be lawful, but it |
may become unlawful whenever the ad- |
jacent owners devote their property to |
purposes of business or residence as to |
render the continuance of the objection |
able trade incompatible with such pur-
poses. Taylor v People, Parker's
Grim. Cases. p. 353.
The contrary principle that a person |
is remediless if he comes to a nuisance
is supposed enormously to be derived
from remarks Of Abbott, G.. J., in Rex
V. Cross, Car. & Payne, 226, and is not
sustained by authority cit used to be
thought that if man knew there was
a nuisance and went and lived near it
he could not recover, because, it was
said, 1t is he that goes to the nuisance.
and not the nuisance to him. That,
however, is not the law now Ad-
olson on Torts, Sec. 367, citing Hole V.
Barlow, G. B. \. s., 1886. There is no
such thing as preScriptive right or
any other right to maintain a public
nuisance" Mills V. Hall ct al. 9 Wend..
BIS. In Commonwealth V. Upton, 6
Gray, 473, the Court held that Carrying
On trade for twenty years in place
remote from buildings and public roads
1oes not entitle the owner to continue
I in the same place after houses have
been built and roads laid out in the