The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-06-26


reason for this rule is that the use and
enjoyment of his land by person must
have reference to the rights of others
and be subordinate to general laws
which are established for the benefit
OF ALL 1T is only when ueighborhood
has been for years so wholly given up
to establishments devoted TO noxious
or 6isagreeahle trades that tipa addition
of one or more will not add sensibly
TO the discomfort of complainant that
his right 20 an injunction will be de-
feA,ed
Cleveland V. Citizens Gas Light Co.
20 \. ]. EQ., POI.
In Chap. 20 OF Wood on Nuisauces
the learned author maintains with vigor
the proposition that though there can
be no prescription for public nuisance.
there can be one for 4 prirdtC nuisance.
The case before us does not call for a
ruling upon this question, for when the
bill was filed the alleged nuisance was
merely prospective, the theater being
IN process of erection, and there is no
pretence that the other Chinese thester
in that neighborhood had been in ex-
istence for twenty years.
But is the neighborhooG wholly de
voted TO Chinese thearers producing
noises like those complained of The
proofs are that for many years a Chi
neSe theater was in operation on King
street, west of the bridge over Nuuanu
stream. This was $50 feet distant from
PLAINTIFF residence, and il was estab-
liShed there before plaintiff made his
residence there, but il had been re-
moved when plaintiffs bill was filed.
Performances in the next Chinese the
alter built in the neighborhood were be
gun in January, 1895. II is rs feet from
plaintiffs residence. The proposed the
alter was begun in August of that year,
and is nearer still to plaintiffs resi-
dence. its rear being $40 feet from il, as
appears by the survey in evidence.
Upon this showing we cannot say
that the neighborhood is so wholly de-
voted 10 noises of the character COM
planned of that the addition of one or
more Chinese theaterS with its orches-
ira would not sensibly add 10 the an
noyance and discomfort of the plain
tiff. The fact, if il be q fact, that the
plaintiff did not complain of the or
chestra of the Chinese theater 725 feet
from him is nothing against his com
planning of the one $40 feet from him.
That noise alone may be the subject
in equity for an injunction is unQues-
toned. Wood, NU;Sances, Sec. GIL
Pending the appeal we understand
that the defendant, being unreSrained
by injunction. has completed his the
alter and that il is in operation. pre-
sumably with an orchestra OF the char
acIer alleged. which we find from the
testimony of competent witnesses TO
be indispensable TO the performance Of
Chinese military dramas. We have no
doubt that the loud and. discordant
noises produced by some OF the instru-
meats used. though pleasing TO Chinese
audiences who gather there mot neces-
sarily all residents in the locality. are
annoying and disturbing TO the plain
tiff and the neighborhood in general
st night, during the hours generally
devoted 10 sleep and quiet
We are not authorized 10 compel the
removal OF defendants building itself.
for il is not Questionable as struc-
1ure, nor will we enjoin the performing
of Chinese or other theatrical or op-
cratic performances in the said struc-
ture, for of themselves they disturb no
one: nor can we enioin musical accom-
panimentS il not so loud, harsh strl-
dent and continuous" as TO be nuis-
ance. The plaintiff has shown by the
afidavits of large number OF credible
persons living within the acoustic
sphere OF the noise OF instruments used
BY the orchestra OF 2 Chinese theater
that such noise would seriously inter
tere with their sleep and quiet But
there Is no exact testimony showing
what particular instruments used in
such an orchestra produce the offensive
noises. We do not feel warranted 10
enjoin the use of all and every kind Of
Chinese musical instruments, but only
OF such whose noise would disturb the
complainant in the enjoyment OF his
quiet and rest Nor, considering the
evidence in this case, are We willing 10
enioin the reasonable use of even full
Chinese orchestra With its Objectionable
instruments al such hours OF the day
OF night wherein the noise so made
would not disturb the quiet and rest OF
the complainant, remembering that the
complainant alleges in his bill that the
time in which Chinese oTchesIras play
Is between twilight and midnight
The evidence shows that the noise
produced by the instruments out Of
which come harsh, strident and dis
oordsnJ tones" annoys and disturbs
complainant only 10 this extent, to-Eit.
in that, being produced at unreasonable
hours il seriously inIerferes with his
sleep. or. rather, attempt 10 get sleep. In
other words. complainant has failed 10
prove aHrmativeIy that the aforesaid
noise is such as 10 annoy or inconyeni-
enoe him al any tine other than that
devoIei By him 70 sleep; and eonse-
QUently. further inquiry in the Circuit
Court should Be limited. OF this branch
Of the case. 10 the question OF what are
the hours within which the production
Of said noise should Be eR5oined By rez-
son Of IT'S interference with complain
ants sleep
We think that an injunction ought 70
Issue ealoining the nse OF said objec-
uo1sble instruments during the hours
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