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

A bill for an injunction was filed
by plaintiff in August last, 10 prevent
the erection by defendant of building
TO be used as Chinese theatre. y
preliminary injunction was denied, 3
demurrer oyerruled, and hearing on
the merits was had in October. The
Circuit Judge dismissed the bill and an
appeal was taken by plaintiff to this
Court 4 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 IS S residence
>. That for many years past the To-
cality in which the plaintiff said resi-
6enCe is situate, has been 3 residence
district undisturbed by noisy trades
and businesses.
S. That plaintiff is informed and
believes that Lee Wai. of said Honolu-
III. the defendant hereto, is about 10
and is now preparing 10 build, in close
proximity TO plaintiffs said residence,
g house 10 be operated and used as a
Chinese theatre.
I. That the performances carried or
in such theatres IS that proposed and
now about 10 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 sJrinsed in
Strunents the names Of which are IN
known 10 the plaintiff, but which pro-
GuC5 harsh. Strident and diSCordant
tones Of great volume and continuity.
3 That the time and times during
which such performances are usually
enacted Is between twilight in the even
ing and midnight
s That the volume. diScordance and
continuity OF the noise so produced st
such performances is SO great that il
VIII be distinctly heard upon plain
tits Said premises and viii render
sleep and the peace and enjoyment OF
life upon plaintiffs said premises. 10
which he Is lawfully entitled. an in
possibility while the same continues
: That If The said defendant Is 81
lowed 10 so erect theatre and conducI
performances therein as aforesaid il
xiii cause irreparable injury 70 plain
III and 10 his rights as the owner and
occupier OF said premises IS aforesaid
By destroying his peace and quiet and
iniGrinE the value OF his said prem
5SaS
The Circuit Judge found that the evi-
6eRcs- which consisted mainly OF 6epo-
sitions OF some sixteen persons resid-
Ing n The locality. that the allegation
n The bill as 70 me nuisance vas over
EaelniRg IN lis force and suffciency
2nd stands unconradic1ed," and that
The plaintiff who resides under similar
circumstances with the Opponents
EouId Be subject 10 the same annoy
aaoe, but denied the injunction because
the plaintiff had failed TO sustain the
allegation that his residence is situated
IN E locality undisVurbed BY noisy
trade and businesses The Judge Re
marked that recognizing the fact that
re are g cosmopolitan community. 70
say that What is positive pleasure and
enjoyment TO one portion OF the popu-
lace should Be decreei E nuisance pr 5,
% the other would Be going TOO far
without very satisfactory proof thai
heretofore The location in which the
plaintiff resides had been free from
such disturbances as he now complains
OF"
Te DO not understand that any such
burden CeS1s Gpo1 2 party seeking %
eoloio : nuisance Persons may CON-
plain OF E nuisance even If they erect
their dwellings where they may be af-
xec-ad by Z nuisance already existing
II offensive trade OF business nay
be established and carried or a1 3 point
- remote from Others as in no way q
disturb Others, and Be lawful but il
nay become unlawful whenever the a6-
5zcsat oE0ers devote their property Il
purposes Of business OF residence as q
render he continuance OF the objection
able trade incompatible with such pur-
poses TaylOE y People, Parker's
Grim Gases. 2 SSS-
The contrary principle thar person
: rens6iless If he cones 10 hUissncs
i supposed enormously 10 Dc derived
from remarks OF Abbott C j. in Rex
: Cross : Car & Payne. -. and Is not
sustained b. authority AZ used 70 Be
thought thai If = man knew there vas
& nuisance and Eert and lived near il
ne could lot recover. because. IL vas
said II Is he that goes 10 The nuisance
and lot the nuisance 70 him That
however. Is not the isE now ? AZ
olson On To-Is. Sec So. citing Hole =.
Barlow. C B N s. Sc. There Is 10
Szch thing IS : pcesCipuFe right OF
any ocher right 70 maintain Z public
nuisance Nils = Hall g al, 2 Wend.
SI5 In ConnOnEeai1h Z Upton
Cray. As. the COGr1 held that carrying
o. : trade for twenty years II place
remote from buildings and public r0zis
does n0- saTitle the owner 10 ooa1inue
il IN the same place AFTER houses have
ben built and roads laid on IN the
aeIghbO-hood. % t2= occupants O. and