1934 respondent school district owned one-half of what is now Bengal Field and that year the balance of the ground was purchased by the Associated Student Body of Lewiston High School. From 1934 to 1936 through P. W. A. aid the field was sodded and bleachers erected making it suitable for football. 1937 various citizens and civic groups of Lewiston raised funds to equip the field for baseball. *Page 112 Under agreement with respondent lighting facilities were installed, the bleachers enlarged and improved and the field made ready for night baseball. April 12, 1937, respondent leased the field to A.B. Kurbitz, owner of a professional baseball club, and night baseball was initiated under that agreement.
April 22, 1938, respondent, through its board of trustees, adopted the following resolution for the purpose of leasing Bengal Field during the 1938 baseball season:
"Be It Hereby Resolved, That the following working arrangements be put into effect by the Board of Directors for the use of Bengal Field during the present baseball season, or so long as such arrangements continue to work out with entire satisfaction to the Board:
"1. The locally sponsored baseball team known as 'The Lewiston Indians' shall be permitted to use the field and keep 90 per cent of the gross receipts from the games they play. The Lewiston Indians will be responsible for
"a. The cost of lighting for games they play, and
"b. The cost of ticket men and policemen for games.
"2. The financial officer of the Lewiston Indians shall turn over 10 per cent of the gross receipts to F.S. Brown, Clerk, once each week, and F.S. Brown will disburse these funds for
"a. The replacement of light bulbs,
"b. One-half the cost of a special caretaker.
"This man is to be employed by the school board, and the other half of his wages will be paid from district funds.
"c. Replacement of sod and permanent equipment for fall sports.
"d. Incidental costs of preparing field for community baseball.
"e. A pro-rated share of the cost of liability insurance. The school board will carry the insurance coverage.
"f. Refunds for the local contributors to the permanent investment. Anything left in this fund at the close of the season will be distributed to these men.
"3. The school board will stand all regular costs to the district, including water, paint, general supervision, and miscellaneous items of upkeep. This will also include one-half *Page 113 of the wages of a caretaker and a pro-rated share of liability insurance.
"4. Mr. Caple shall represent the school board in directing changes required in preparation for community base-ball and Mr. Markham shall supervise all work of maintenance and operation of the field.
"5. Nothing in this resolution shall be interpreted as to place any additional financial obligation or liability on the school board due to the use of Bengal Field by non-school organizations; nor as to permit any interference with school activities."
This agreement was later amended by the minutes of respondent's board of trustees of May 9, 1938, as follows:
"Five per cent of the gross gate receipts are to be paid by the Lewiston Indians Baseball Club to F.S. Brown, Clerk, to be expended by him for the following named purposes:
"1. To be applied on the present indebtedness for Bengal Field Improvements, bills that were not fully paid from the collections and receipts during the year 1937, being due Madison Lumber Co., $253.00, Morey-Robison Electric Co., $171.00, and Potlatch Forests, Inc., $187.00, a total of $611.00.
"2. After the above named indebtedness has been paid in full, moneys from the five per cent of gross gate receipts shall be distributed pro rate to the business firms and persons who put up the money for the improvements made in 1937.
"The salary of the ground keeper shall be paid one-half by the school district and one-half by the Lewiston Indians. Other expenses and maintenance, such as replacement of lights, are to be paid by the Lewiston Indians. In case these miscellaneous expenses do not total five per cent of the gate receipts for the season, the balance of the second five per cent is to be paid to F. S. Brown, Clerk, and applied by him in payment of the above mentioned indebtedness."
Appellants sued to enjoin the use of Bengal Field for the playing of baseball on two grounds: First, that respondent district had no authority to make the lease for the reason that to do so was a pledge of the credit or faith of said school district to the ball club, a private concern, in violation of article 8, section 4 and article 12, section 4, of the Idaho Constitution, *Page 114 and second, that the use of the field in the manner alleged, constitutes a nuisance.
Article 8, section 4 and article 12, section 4, of the Idaho Constitution prohibit the lending of credit by the state and its political bodies in aid of private objectives. To constitute a violation of said provisions it is essential that there be an imposition of liability, directly or indirectly, on the political body. Unless the credit or faith of respondent is obligated there is no constitutional inhibition. (Atkinson v.Board of Commissioners, 18 Idaho 282, 108 P. 1046, 28 L.R.A., N.S., 412, School Dist. No. 8 v. Twin Falls etc. Ins. Co.,30 Idaho 400, 164 P. 1174, and Fluharty v. Board of CountyCommrs., 29 Idaho 203, 158 P. 320.)
In the case at bar the entire cost of equipping the field for baseball, amounting to approximately $8,000, was raised by private contribution. Respondent pledged none of its funds, nor has it contributed any, to the baseball venture. The contract of lease is carefully drawn to eliminate any possibility of district liability. The result so far as respondent's finances are concerned is that it now has a baseball park fully equipped, without expense to it, with complete right to use it for all school purposes. (Blankenship v. School Dist. No. 28,136 Kan. 313, 15 P.2d 438.)
It is the almost universal rule that the leasing of school buildings and parks for private purposes which are not inconsistent with the conduct of the school, is not an unconstitutional use of such property. (Merryman v. SchoolDist. No. 16, 43 Wyo. 376, 5 P.2d 267, 86 A.L.R. 1181;Royse Independent School Dist. v. Reinhardt, (Tex.Civ.App.)159 S.W. 1010; Cost v. Schinault, 113 Ark. 19, 166 S.W. 740, Ann. Cas. 1916C, 483; Sheehan v. Board of Education, 175 Mich. 438,141 N.W. 574, 45 L.R.A., N.S., 972; annotations in 86 A.L.R. 1195; 86 A.L.R. 1175; 63 A.L.R. 100.)
Though in most of the above cases the constitutionality of the lease was not attacked on the ground of its being a loan of the faith or credit of the state or political subdivision involved, in many of the cases the state constitutions did have provisions similar to Idaho Const., art. 12, sec. 4, and art. 8, sec. 4. In Ralph v. Orleans Parish School Board,158 La. 659, 104 So. 490, suit was instituted to enjoin the school board *Page 115 from contracting with a private person to set up a lunch counter in the school building during the noon hour on the ground that it was unconstitutional under Constitution of Louisiana, article 4, section 12, which prohibits loaning of state "funds, credits or things of value" to a private person, etc. The court held such use of the school building merely incidental to school purposes and not an unlawful use of school property.
It is next contended that the maintenance of Bengal Field in the manner in which it is conducted constitutes a nuisance in that it is located in a residential district and greatly interferes with the use and enjoyment of appellants' property; that the games are played at night and large crowds of noisy people attend and that the games extend from 8:30 o'clock in the evening until on some occasions as late as 1 o'clock the next morning; that appellants are unable to rest at night because of the noise, dust and beacon lights which light up the surrounding area; that automobiles are parked in such a manner as to seriously interfere with free ingress to and egress from appellants' property and that balls used in play by the ball teams are batted into the yards of appellants and persons trespass upon appellants' property to recover said balls, thereby "causing destruction to plaintiffs' (appellants') property and turmoil and confusion, and that the whole of the said conduct of the crowds attracted by said ball games deprives these plaintiffs of the quiet and peaceable enjoyment of their property as aforesaid."
Stipulated Exhibit 3, a map showing the location of Bengal Field and the residences of appellants and others, many of whom testified in the trial of the case, discloses that with the exception of one witness, all those who live on property most nearly adjoining the ball field testified in favor of appellants.
Respondent places considerable stress on the argument that appellants had acquiesced in the use of the field for football games and that baseball was no more of a nuisance than football. The testimony is uncontradicted, however, that football games were played almost exclusively in the afternoons; that the crowds were not nearly so large; that there was no trespass of balls from the football games and lights, of course, *Page 116 were not used. Defendant's Exhibit A shows that from April 20th until September 5th, a period of approximately 158 days, there were played 59 games, all but two of which were night games; thus there was a baseball game on approximately one-third of the nights during the summer months.
The evidence herein is ample to sustain the contention of appellants that the use of the field in the manner in which it has been used herein constitutes a legal nuisance per accidens consisting principally of four elements, namely, the flooding of appellants' homes with excessive light, preventing or hindering sleep and rest; creation of excessive noise; trespass of balls and people, and parking of automobiles in such a manner as to greatly hinder ingress to and egress from appellants' property.
While respondent is correct in its contention that this court must weigh the relative rights of the parties and that an injunction will not be granted where the loss to defendant far outweighs the benefit to be gained by plaintiff (Roy v.Chevrolet Motor Car Co., 262 Mich. 663, 247 N.W. 774), the court must also take into consideration the fact that the ball field is located in a residential district, that it is especially injurious to appellants in that it is used at night with its attending bright lights, noisy people, heavy automobile traffic and trespassing of balls and people on appellants' property. Baseball games are not nuisances per se (Royse Independent School Dist. v. Reinhardt, supra), but become such under circumstances such as here where they are conducted in such a manner as to greatly interfere with legitimate and necessary use and enjoyment of the property of others. (Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568;Hennessy v. City of Boston, 265 Mass. 559, 164 N.E. 470, 471, 62 A.L.R. 780; Cronin v. Bloemecke, 58 N.J. Eq. 313,43 A. 605; Gilbough v. West Side Amusement Co., 64 N.J. Eq. 27,53 A. 289; Edmunds v. Duff, 280 Pa. 355, 124 A. 489, 33 A.L.R. 719; Phelps v. Winch, 309 Ill. 158, 140 N.E. 847, 28 A.L.R. 1169; annotation, 62 A.L.R. 782.)
The judgment is reversed with directions to issue an injunction restraining respondent from causing the lights to shine into and on appellants premises so as to interfere with their sleep and the reasonable and necessary enjoyment of *Page 117 their property; from allowing balls to be knocked or thrown onto appellants' premises and from allowing people in search of baseballs to trespass thereon; to restrain the parking of automobiles in such a way as to interfere with free ingress to and egress from appellants' properties, and to desist from noise preventing sleep after a reasonable time in the evening, i. e., after 10 P. M.
Costs awarded to appellants.
Ailshie, C.J., and Budge and Holden, JJ., concur.
Morgan, J., because of illness, did not participate in the decision of this case.
ON REHEARING. (January 19, 1940.)