The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-25

enjoyment of his land by a person mus
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 neighborhood
has been for years so wholly given uI
TO establishments devoted TO nOXious
or disagreeable trades that the addition
/ of one or more will not add sensibly
10 the discomfort of a complainant that
/ his right to an injunction will be de-
/ feated.''
Cleveland V Citizens Gas Light Co.,
/ 20 n. j. Eq., POI.
/ In Chap. 20 of Wood on Nuisances
the learned author maintains with yigor
/ the proposition that though there can
/ be no prescription for public nuisance,
there can be one for a pirate 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 theater
in that neighborhOod had been in eX
| istence for twenty years.
But is the neighbOrhood wholly de-
voted to Chinese theaters producing
noises like those complained of? The
proofs are that for many years Chi
nese theater was in operation on King
street, west of the bridge over Nuuanu
stream. This was $50 feet distant from
plaintiffs residence, and it was estab-
lished there before plaintiff made his
residence there, but it had been re-
moved when plaintiffs bill was filed.
Performances in the next Chinese the
at or, hui1f in hn hnrhnn6 hn-
gun in January, 1895. 1t is 725 feet from
plaintiffs residence. The proposed the
alter was begun in August of that year,
and is nearer still to plaintiffs resi-
dence, it's rear being $40 feet from it, as
appears by the survey in evidence.
Upon this showing we cannot say
that the neighborhood is so wholly de-
voted to noises of the character COM
plained of that the addition of one or
more Chinese theaters with its orches-
ira would not sensibly add to the an
noyance and discomfort of the plain
tiff. The fact, if it be 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
III CdulIy LII dh Is puQuCS-
toned. Wood, NuiSances, Sec. Gil.
Pending the appeal we understand
that the defendant, being unrestrained
by injunction, has completed his the
alter and that it is in operation, pre-
with an orchestra of the char
acter 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- |
ments used, though pleasing to Chinese
audiences who gather there (not neces- |
sarily all residents in the locality), are
and disturbing to the plain
tiff and the neighborhood in general |
at night, during the hours generally |
devoted to sleep and quiet.
We are not authorized. to compel the |
removal of defendants building itself, |
for it is not Objectionable as a struc-
ture, nor will we enjoin the performing
of Chinese or other theatrical or OPP
cratic performances in the said struc-
ture, for of themselves they disturb no
one; nor can we enjoin musical accom-
paniments if not so loud, harsh, stri
dent and continuous" as to be nuis-
ance. The plaintiff has shown by the
aftidavits of large number of credible
persons living within the acoustic |
sphere of the noise of instruments used |
by the orchestra of a Chinese theater
that such noise would seriously inter
fere 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 to
enjoin the use of all and every kind of |
Chinese musical instruments, but only
of such whose noise would disturb the
in the enjoyment of his
quiet and rest. Nor, considering the
evidence in this case, are we willing to
enjoin the reasonable use of even full
Chinese orchestra with it's Objectionable
instruments at such hours of the day
or night wherein the noise so made
would not disturb the quiet and rest of
the complainant, remembering that the
alleges in his bill that the
time in which Chinese orchestras play
is between twilight and midnight.
The evidence shows that the noise
produced by the instruments out of
which come harsh, strident and dis
cOrdant tones" annoys and disturbs
only to this extent to-wit,
N that, being produced at unreasonable
hours, it seriously interferes with his
sleep, or, rather, attempt to get sleep. In
other words, complainant has failed to
prove affirmatively that the aforesaid
noise is such as to annoy or inconveni-
ance him at any time other than that
devoted by him to sleep; and, conse-
Iuently, further inquiry in the Circuit
Court should be limited on this branch
Of the case, to the question of what are
he hours within which the production
IF said noise should be enjoined by rea-
son of its interference with complain
ants sleep.
We think that an injunction ought to
ssue enjoining the use of said objec-
ionable instruments during the hours
within which the noise produced by
hem interferes with compliments
sleep. The case is RENTED to the Cir
cult Court of the First Circuit for a
hiding upon these two questions, to-