In the opinion heretofore filed and now here for reconsideration upon petition for rehearing it is contended, and rightly so, that this court in effect held that the playing of night baseball was a nuisance per se. This conclusion appears well founded inasmuch as it appears that the result reached in the opinion does not take into consideration the fact that there was a sharp conflict in the testimony offered upon the trial. *Page 119
That the game of baseball is not a nuisance per se is well settled. It is an innocent or legitimate amusement, and, like a legitimate business, to warrant an injunction stopping or destroying it it must appear that indulgence in it is necessarily a nuisance because conducted in such manner as to materially interfere with or prevent legitimate and necessary use and enjoyment of the property of others. (Royse IndependentSchool Dist. v. Reinhardt, (Tex.Civ.App.) 159 S.W. 1010;Alexander v. Tebeau, (Ky.) 71 S.W. 427; Riffey v. Rush, 51 N.D. 188,199 N.W. 523.) Night baseball is comparatively new, but it might now be said to have become a national game. It is attended by thousands of spectators from all classes throughout the nation. It is a clean and wholesome sport and is in no sense unlawful or objectionable when properly conducted. It is not the playing of night baseball or any legitimate game or sport at night or otherwise which may be said to constitute a nuisance, but it is dependent, rather, upon the sensibilities and enjoyment of peace and comfort of ordinary persons residing in close proximity to the park or playground where such games are held, or of others who may be affected. (Phelps v. Winch,309 Ill. 158, 40 N.E. 847, 28 A.L.R. 1169; Warren Co. v.Dickson, 185 Ga. 481, 195 S.E. 568; 46 C.J., p. 677; 20 Rawle C. L., p. 445.) If the game or games be so conducted as to materially interfere with or prevent the quiet and peaceable enjoyment of property or the normal rest and sleep of ordinary and reasonable persons residing near or adjacent to the place where such games are played, a court of equity would be empowered to enforce such regulations and restrictions as might be necessary, and if need be grant injunctive relief, when a less measure of restriction would not afford relief. (McPheeters v. McMahon, 131 Cal. App. 418, 21 P.2d 606;Vowinckel v. Clark Sons, 216 Cal. 156, 13 P.2d 733;McNenomy v. Baud, 87 Cal. 134, 26 P. 795; Williams v. BlueBird Laundry Co., 85 Cal. App. 388, 259 P. 484.) The power to grant injunctive relief should be exercised only when the right is clear and the injury impending or threatening so as to be averted only by the protecting preventative process of injunction, and should rarely, if ever, be issued in a doubtful case. (McPheeters v. McMahon, supra.) Whether or not *Page 120 night baseball as conducted in the instant case was a nuisance was a question of fact to be determined by the trial court in the first instance. (46 C.J., pp. 653, 654, par. 18.) After hearing the evidence in this case the trial court considered the same and made the following finding of fact:
"That Bengal Field is located within a sparsely settled residential district in Lewiston, Idaho, . . . . That the crowds attending the baseball games held at night during the year 1938 at Bengal Field, wherein the Lewiston Indians participated, averaged less than 1,000; that the baseball games played at night during the year 1938 by the Lewiston Indians started not later than 8:15 at night and extended over a period of time not later than 10:30 at night, except on one or two occasions when the baseball games did not terminate until 10:45 P. M.; that the crowds and people attending said baseball games were orderly and that there was no boisterous, indecent or vulgar conduct on the part of the players or the people attending said games, and that the only noise occasioned by said baseball games was the usual noise incident to baseball games; that no turmoil or confusion existed during the use of Bengal Field by the Lewiston Indians; that the noise of increased automobile traffic of stopping, starting and shifting gears was only that necessary and usual in the rightful use of the public streets; that the honking of horns by people attending athletic contests at Bengal Field was after games of football played by the Lewiston High School;
"That the use of Bengal Field for baseball purposes by the Lewiston Indians during the year 1938 did not interfere with the comfortable enjoyment of the property of the plaintiffs, and in no way interfered or obstructed the use of the property of the plaintiffs."
The court then concluded "That the use of Bengal Field by the Lewiston Indians Baseball Club did not constitute a nuisance," that appellants were not entitled to an injunction or restraining order, and that respondent was entitled to a judgment dismissing the complaint with prejudice, and judgment was so entered.
The evidence upon which the trial court reached the foregoing conclusion and finding discloses the following situation: Six people, three appellants residing immediately adjacent to *Page 121 Bengal Field, one appellant residing approximately a block removed, another appellant residing approximately one and one-half blocks removed, and one witness living immediately adjacent to the field, presented the evidence on behalf of appellants with reference to the conditions existing in the vicinity of Bengal Field during the periods the field was used for night baseball and the effect of such conditions upon their sensibilities and the enjoyment of their property. These six witnesses testified that the use of the field in the manner in which it was used deprived them of the quiet and peaceable enjoyment of their property and of their normal rest and sleep, stating the conditions to be that their homes were flooded with excessive light, excessive noise was created by automobiles stopping and starting and honking of horns; that people attending the games trespassed upon their property and parked their cars so that ingress and egress was greatly hindered; that the crowds were large and excessively noisy and that the games lasted until late at night, even until 1 o'clock or after. Upon the other hand the testimony of thirty-five ordinary persons from all walks of life, residing as close or closer to Bengal Field than the appellant most removed, and at least five of whom lived as close as any appellant, controverted each and every fact testified to by appellants. Twenty-two of these witnesses actually testified and it was stipulated that thirteen others, named, would give substantially the same testimony as those called with reference to the amount of noise, lights, traffic, orderliness of the crowd and other conditions, and the effect of the same upon them. The evidence adduced from these twenty-two witnesses actually testifying discloses they live in as close proximity generally to Bengal Field as do appellants and that they are so situated as to be in a position to receive like or similar effects as appellants from any conditions which might be created by the playing of night baseball at Bengal Field. It appears that night football using the same lighting (at least nine games in 1938) and night softball are played at Bengal Field, as well as night baseball sought to be enjoined by appellants. Neither the night football nor softball are objected to or sought to be enjoined by this action. The softball games have in *Page 122 most instances ended much later than any baseball game. It appears that football games draw as large or larger crowds and there was much more confusion, noise, cheering, and honking of horns during and after the football games than existed at the baseball games. The testimony of these witnesses, some of whom judged the conditions with reference to periods when ill and bedfast, another with a small baby in the home immediately adjacent to the field, another forced to retire at 7 or 8 o'clock in the evening, is to the effect that the noise and lights attendant to the games of baseball was not excessive and did not interfere in the least with the comfortable and peaceable enjoyment of their property and did not interfere with or prevent normal sleep or rest; that the automobile traffic likewise was not excessive and did not interfere with the enjoyment of any property rights; that the traffic was quietly and quickly dispersed, within five to ten minutes after the conclusion of a game; that the parking of cars had not interfered with ingress and egress and that the car owners were very considerate and did not block driveways or garage entrances or ingress and egress and that in actuality parking lots provided took care of a great share of the parking of cars and that there was no traffic congestion; that the games and the grounds were well policed and the crowds were very orderly, not unusually noisy, did not trespass upon the property of residents in the vicinity and did not honk the horns on their cars either during or after the baseball games; that baseball games usually ended about 10 o'clock or before and that on one or two occasions games had lasted until 10:20 or 10:30 and that softball games had lasted much later; that neither the parking of cars, noise, reflection of lights, nor traffic was excessive, nor were these, or any other conditions which might be attributed to the baseball games, noticeable in any degree which could be said to interfere with their sleep, rest, or the comfortable and peaceable enjoyment of their property. Certainly such evidence, directly contrary to the testimony of appellants upon every phase, directly contrary as to the conditions which actually existed and the effect of such conditions upon persons of ordinary and reasonable sensibilities, creates, to say the least, the sharpest conflict in the *Page 123 testimony. The court after hearing the evidence found, concluded and adjudged that the conditions existing and their effect upon residents in the vicinity were not such as constituted a nuisance. The rule which this court has announced and reiterated from time to time for a period of many years is that this court will not disturb the findings or judgment of the trial court made upon conflicting evidence and where there is substantial evidence to support them. (Bachman v. ReynoldsIrr. Dist., 56 Idaho 507, 55 P.2d 1314; Duthweiler v.Hanson, 54 Idaho 46, 28 P.2d 210; Markham v. Davy, 42 Idaho 545,247 P. 12; Black v. Black, 33 Idaho 226, 191 P. 353;Lisenby v. Intermountain State Bank, 33 Idaho 101, 190 P. 355;Fleming v. Benson, 32 Idaho 103, 178 P. 482; Brown v. Hardin,31 Idaho 112, 169 P. 293; Hemphill v. Moy, 31 Idaho 66,169 P. 288; Casady v. Stuart, 29 Idaho 714, 161 P. 1026; Hardyv. Ward, 31 Idaho 1, 168 P. 1075; ConsolidatedInterstate Callahan Min. Co. v. Morton, 32 Idaho 671,187 P. 791; Miller v. Blunck, 24 Idaho 234, 133 P. 383; Salisbury v.Spofford, 22 Idaho 393, 126 P. 400; Tomische v. Hummel,18 Idaho 23, 108 P. 343; Hutchinson v. Watson Slough Ditch Co.,16 Idaho 484, 101 P. 1059, 133 Am. St. 125; City of Pocatellov. Bass, 15 Idaho 1, 96 P. 120; Miller v. Donovan,13 Idaho 735, 92 P. 991, 992, 13 Ann. Cas. 259; Heckman v.Espey, 12 Idaho 755, 88 P. 80; Spaulding v. Coeur d'Alene Ry.etc. Co., 5 Idaho 528, 51 P. 408.) This rule applies in a suit in equity as well as an action at law. (Lus v. Pecararo,41 Idaho 425, 238 P. 1021; Wooten v. Dahlquist, 42 Idaho 121,244 P. 407; Bedal v. Johnson, 37 Idaho 359, 128 P. 641; Vielv. Summers, 35 Idaho 182, 209 P. 454; Davenport v. Burke,30 Idaho 599, 167 P. 481; Wolf v. Eagleson, 29 Idaho 177,157 P. 1122; Darry v. Cox, 28 Idaho 519, 155 P. 660; Jones v.Vanausdeln, 28 Idaho 743, 156 P. 615.) The evidence being directly in conflict as to the magnitude of the noise, brilliancy of the lights, demeanor of the crowds, the manner of parking cars, the question of trespass and the effect of all these conditions upon normal and reasonable residents of the community in the same or a like position, and there being substantial evidence to support the trial court's finding and judgment this court should not disturb the same. *Page 124
There is another reason equally as tenable as that heretofore discussed, namely that the granting of injunctive relief is within the sound discretion of the court. (Roy v. ChevroletMotor Car Co., 262 Mich. 663, 247 N.W. 774.)
After a more thorough and diligent investigation of the record and the authorities there is no question in the mind of the writer of this opinion but that the court was in error in reversing the learned trial court's judgment, and that the cause should be remanded to be disposed of as herein indicated, that is the judgment affirmed.