The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-05-08
SUNDAY BASEBALL CASE
GRAN N. MUIR, FOR THE INDIANAPO-
! LIS CLUB, FILES A DEMURRER.
He Holds that the PLAINTIFF Has Not
Suffered the Injury Complained of
News of the Courts.

Attorney Oran n. Muir. representing w.
X. Watkins and the members of the base
ball club, fled a demurrer in the Superior
Cpurt yesterday in the injunction proceed
irigs brought by Elmer Z. Jones, resident
IN, the neighborhood of Washington Park,
who seeks to prevent the playing of Sun
dhy games.
The demurrer declares that the complain
AIT does not state facts sufficient to con-
ssitute cause of action. With the demur-
rer was filed a lengthy brief in which the
complaint of the petitioner for injunction
Is discussed. 1t is held that threatened
violation of the law is alleged but this I'm
itself, 1t Is asserted, does not entitle the pc
tftioner to relief in court of equity. A
citizen asking relief by injunction must
show special damage, some private right
violated, in contradistinction to the rights
OF the rest of the public. it is declared
The brief contends that the injury which
the plaintiff must suffer before he can
maintain such an action must be par
ticular injury" not merely different in de-
gee from that suffered by the public 1t
must be different In kind. A number Of
authorities are cited in support OF this con-
tdntion. The suit of PAINTER against the
Indianapolis Union Railway Company Is
recalled by Attorney Muir. In this case the
plaintiff sued for damages resulting from
tie vacation of Illinois street for the pur-
pose of building the Union Station. The
plaintiff owned property Illinois street
between the point vacated and South
street. He held that access to his property
was interfered with by the vacation of the
street. The court held that he could not
recover because the injury suffered by him
was of the same kind as that suffered by
anrt 1Yfnrrr mr.
''The plaintiff must suffer an injury diff
ferent In kind and not merely in degree
from that suffered by the community In
general, were the words OF the court.
The brief discusses the question of what
Constitutes the PUBLIC or community in
general" 1t cites n herous authorities to
public means those who reside in the
Immediate vicinity and are subject to the
Inconvenience complained Of
Continuing, the attorney says: From a
careful examination of the complaint no
such special damage appears TO be suffered
BY the plaintiff. The nuisance, according
to the complaint, consists in there being at
tracted 10 the game great crowds of peo-
pie, and that in witnessing such games
such crowds are wrought up to great ex-
element and by yelling, shouting, whis-
ting and other demonstrations make a
great noise and create a disturbance that
can be heard at least a mile and will de-
stroy the peace and quiet OF the neighbor-
hood. II the acts complained of are a
nuisance at all they constitute a public
nuisance. All in the vicinity of Washing
ton Park are affected alike. They consti-
ttise the public. The entire nuisance. If one
at ALL consists of a noise which must affect
al in the same manner, though perhaps
differently in degree. If the petitioner s
property is decreased in value because of
the noise, so is all other property of that
vicinity The allegation that plaintiff S
house is 700 feet from Washington Park
might warrant the conclusion that the
damage to him would be in a lesser degree
than to others Upon the facts stated in
the complaint IL cannot be seriously con-
tended that the acts complained of will
constitute private nuisance, and absolute
ly no allegation appears which would SO
| far permit il to partake of the nature of a
private nuisance as TO authorize a proceed
! ing OF this character at the hands Of the
| plaintiff"