This case is before us on appeal from a final decree awarding injunction.
The bill of complaint sought to enjoin the operation of a public dancing pavilion located on a certain lot in a rural subdivision. The findings and judgment were as follows:
"One. That the Court has jurisdiction of the subject matter and the parties to this cause.
"Two. That the equities are with the plaintiffs and against the defendants.
"Three. That the operation of a dance hall or dance pavilion twice a week in the evenings or at any time by the defendants upon Lot 10 of Waterwitch Club Subdivision as per plat thereof recorded in plat book "K," page 69 of the public records of Orange County, Florida, as alleged in the bill of complaint and as shown by the evidence (during the hours of rest) constitutes a private nuisance as to the plaintiffs, because the community is strictly residential, and should be enjoined, although the Court finds that said dance hall or pavilion has been conducted with more order and decorum than an ordinary public dance hall is conducted, *Page 66 if not with the most possible order and decorum for a public dance hall.
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
"First: That the motion to dismiss incorporated in the answer be, and the same is hereby overruled and denied.
"Second: That the defendants be and they are hereby permanently and perpetually enjoined from maintaining or operating a public dance hall or dance pavilion on Lot 10 of Waterwitch Club Subdivision, as per plat thereof recorded in Plat Book 'K,' page 69 of the public records of Orange County, Florida, and from conducting or holding public dances upon said premises.
"Third: That the defendants be, and they are hereby perpetually and permanently enjoined from hiring, employing or in any way procuring any orchestra, band, musicians, musical instruments or machines to play or furnish music for public dances or dancing upon said premises.
"Fourth: That the defendants be and they are hereby permanently and perpetually enjoined from using said premises or permitting said premises to be used in any manner, or for any purpose that will unreasonably disturb or annoy the plaintiffs in the use and enjoyment of their respective homes.
We think that the creation of loud and disturbing noises, in the night time especially, in residential sections may be enjoined by chancery decree as a nuisance, but, of course, each case must stand on its own merit and no general hard and fast rule may yet be laid down stating just what noise may constitute a nuisance and what will not.
We quote from U.S. Law Review, August, 1931, page 409, etseq.:
"While it has been held that singing at reasonable hours, *Page 67 in connection with the giving of vocal lessons, is not a nuisance per se, it may amount to a nuisance in fact in particular circumstances. In Motion v. Mills (13 Times L. R. 427), the defendants conducted a vocal studio in a business neighborhood, next door to the plaintiffs, a firm of auctioneers. The plaintiffs asserted that their business involved much reckoning and keeping of accounts, and that inaccuracies, due to distractions from noise, might entail serious consequences. They also alleged that the sound of ambitious pupils attempting to scale high notes nearly drove plaintiffs and their clerks mad, and seriously interfered with the proper performance of their work. The court accepted plaintiff's view of the case and granted an injunction. In Gilbough v. Westside Amusement Co. (64 N.J. Eq. 27) Vice-Chancellor Pitney of New Jersey, writing long before the advent of the radio, expressed the general rule of law in respect to noise saying: That mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party subjected to it to seek the preventive remedy of the court of equity is thoroughly established. The reason why a certain amount of noise is or may be a nuisance is that it is not only disagreeable but it wears upon the nervous system and produces that feeling which we call 'tired.' That the subjection of a human being to a continued hearing of loud noises tends to shorten life is, I think, beyond all doubt. Another reason is that mankind needs both rest and sleep, and noise tends to prevent both.
"That case dealt with an amusement park in a residential neighborhood. A closer analogy to the radio is afforded by the case of Stoder v. Rosen Talking Machine Co. (247 Mass. 60,141 N.E. 569; s. c., 241 Mass. 245). It there appeared that the defendant played a phonograph in front *Page 68 of his store for the purpose of attracting trade. This was held to constitute a private nuisance as to the plaintiff, a neighboring shopkeeper.
"It is also well settled that the fact that the musical sounds may be generally of an agreeable character, or not necessarily disagreeable, is no ground for denying an injunction, if they are in fact obnoxious under the particular circumstances of the case. In the leading case of Soltau v. DeHeld (2 Simons, n. s. 133), a monastic order of the Catholic Church had established a chapel adjacent to the premises occupied by the plaintiff. It appeared that a set of six bells, of unusual size and weight, were installed and were rung every day at frequent intervals, commencing on some days as early as five o'clock in the morning and continuing until ten in the evening. Witnesses residing at some distance testified that the chimes were pleasant, one witness describing them as a 'positive gratification' when heard from afar. It was held that the fact that the sounds might be pleasurable to persons somewhat removed from them did not make them any the less a nuisance to the plaintiff.
"As in the case of nuisance generally, a nuisance created by sound may be either public or private, depending upon the number of persons affected. To constitute a public nuisance warranting criminal prosecution, it must appear that the act is one which injuriously affects a substantial number of persons. It has been held, however, that the number need not be very great. (People v. Rubenfeld, 54 N.Y. 245, 172 N.E. 485). The case last cited arose under the provisions of the New York penal law (Sec. 1530) defining a public nuisance, in part, as the doing of an act which annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons, the section being substantially a codification of the common *Page 69 law rule with respect to indictable nuisances (People v. Borden's Condensed Milk Co., 165 N.Y. App. Div. 711, aff'd,216 N.Y. 658 mem.) The defendant conducted a dance hall in a populous neighborhood which was in use every evening in the week, the music and festivities frequently continuing until dawn. Witnesses testified that the sounds could be heard about a block away. In holding that the defendant was guilty of maintaining a public nuisance, the court said: To be reckoned as 'considerable,' the number of persons affected need not be shown to be 'very great.' Enough that so many are touched by the offense and in ways so indiscriminate and general that the multiplied annoyance may not unreasonably be classified as a wrong to the community.' "
In 46 C. J. 699, the author says:
"A dance hall is not a nuisance. It is not classified as a nuisance per se and it is not per se a public nuisance. But a dance hall may become a nuisance by reason of surrounding circumstances, as for instance, by reason of the character of the locality in which it is operated, entitling an adjoining owner or occupant to injunctive relief, although such hall or pavilion is orderly and well regulated as a place of amusement."
Bielecki v. Port Author, Tex. Civ. App. 2 S.W. (2nd Ed.) 101, it was held: "A public dance hall operated within a residence district is intrinsically and inevitably a nuisance."
To the same effect was the holding in Phelps v. Winch,309 Ill. 158, 140 N.E. 847, 28 R. L. R. 1169.
2 Wood on Nuisance, page 840, Sec. 632, holds:
"The noise of musical instruments kept up for such periods of time and at such hours of the day or night as to be really annoying to persons of ordinary sensibilities or *Page 70 that produces other actual ill results is a nuisance and any noise, whether of musical instruments, the human voice, discharge of guns, or however produced, that draws together in the vicinity of a person's residence or place of business large crowds of noisy and disorderly people is a nuisance."
The author cites Attorney General v. Sheffield Gas Co., 19 E. L. Eq. 649; Inchbald v. Harrington, L. R. 4 Ch. App. 386; Walker v. Brewster, L. R., 5 Eq. Cas. 21. See also Seligman v. Victor Talking Machine Co., 71 N.J. Eq. 697, 63 A. 1093; Reillye v. Curley, 75 N.J. Eq. 57, 71 A. 700, 138 Am. St. Rep. 510; notes 17 L.R.A. (n. s.) 288; 19 Am. Cas. 993; 20 R. C. L. 446; Shaw v. Queen City Forging Co., 7 Ohio N.P. 254; 10 Ohio S. C. P. Dec. 107; McCann v. Strong, 97 Wis. 551,72 N.W. 1117; Peacock v. Spitzelberger, 16 Ky. Law Rep. 803, 29 S.W. 877; Roukovina v. Island Farm Creamery Co., 160 Minn. 335,200 N.W. 350, 38 A.L.R. 1502.
It could serve no useful purpose for us to review the evidence. We think there is sufficient basis in the record to support the finding that the operation of the dancing pavilion constituted a private nuisance and should be abated. But, the record does not support the decree in full and it should be modified by confining its application to those hours of the night which are commonly held and considered to be the hours of rest, that is from the hour in the evening when the people in that community are accustomed to retire for the night on through the balance of the night.
The record does not disclose that the operation of the pavilion causes any annoyance or is a private nuisance at any other time except when conducted during the hours when the people residing in that residential section are accustomed to take their nightly rest. Neither is it shown by *Page 71 the record that dances when held within the house situated on the lot create any nuisance or annoyance while conducted in the house.
It is true that the evidence shows the existence of some annoyance by reason of the passing of automobiles at late hours of the night. But it is not shown that the automobiles did not operate on a public highway where the drivers of such automobiles have the right to operate them in a lawful manner.
We therefore, hold that the decree should be modified as above suggested and, when so modified, it be affirmed.
So ordered.
ELLIS, P. J., and TERRELL, J., concur.
WHITFIELD, C. J., and BROWN, J., concur in the opinion and judgment.
DAVIS, J., dissents.