(dissenting) — The majority opinion, I think, shows one way not to run a railroad. Thirty or forty trains a day running at speeds of up to 75 miles per hour night and day through fields occupied by thousands of people is a public danger even if the tracks are on an elevated embankment. I, therefore, dissent.
I do agree, however, with the majority’s affirmance of the trial court’s ruling that the proposed Sky River Rock Festival and Lighter Than Air Fair would create a public and private nuisance and in sustaining the injunction. But the majority, as I do not, accepts the injunction according to its label and considers it temporary, whereas I find it has all of the qualities of finality and deem it a permanent injunction. And if it is a permanent injunction, it requires no bond, and I would have vacated the bond condition. Eliminating *289the bond requirement would leave the injunction viable and intact and would engender a denial of mandamus, for the courts will not direct a public officer to license an activity permanently enjoined as a public nuisance.
The proof of public nuisance as it related to the railroad right of way was overwhelming and without dispute. Everyone connected with the case believed that the Sky River Rock Festival and Lighter Than Air Fair would draw a huge throng to camp and sojourn at the site for 3 days and 3 nights. With continuous musical performances of rock music advertised to run from noon to midnight on each of the 3 days on an open-air stage, the festival was bound to attract thousands of young people to the open fields near Tenino alongside the railroad tracks on the Labor Day weekend, 1969.
The constant sound of rock music on juke boxes, radio and television, and frequent rock performances in theaters, auditoriums and open-air concerts, leaves no doubt of its current popularity, especially among young people. Scholars recognize it as something of a popular phenomenon worthy of analysis and comment, too.
Dr. Leroy Ostransky,1 in describing rock music, circa 1969, attests to its exceptional popularity among the younger segment of our population. Aside from such technical ingredients as primary triads, secondary and nondominant sevenths and modal cadences and tonalities, his analysis, I think, aptly depicts what both the cognoscente and uninformed listener alike actually hear. Rock music, he says, is played in standard two and three part song form; its structure resembles popular and folk songs of all periods. Its harmonies are those found in the Protestant hymns and in 16th Century English folk music. The music melody of rock is simple tonal, easy to sing and repetitive in its sequential melodic patterns. In rhythm, rock music is straightforward duple and triple meter emphasized by propulsive and accepted downbeats. The words of rock music are largely *290devoted to the themes of love, sex, protest, drugs and growing up.
A typical characteristic of rock music, according to Professor Ostransky — an observation readily corroborative by millions of listeners — is its loudness. Electronic equipment calculated to emphasize the sound of instruments is used to a degree not heretofore associated with music; this amplification is one of its most singular characteristics. Electronic feedback, previously regarded in musical circles both as static and an intrusion, is accepted in rock music as a legitimate rock noise. The high-level volume is considered essential by performers and devotees in moving rock audiences to participate, if only vicariously, in what is described as “rock experience.” This was the kind of music billed to be played at the festival for 3 days and 3 nights— from noon to midnight — on an open-air stage, at high volume, over electronic loudspeakers.
In sustaining the trial court’s finding of public and private nuisance, the majority gave the closest possible scrutiny to the record. But so fragmented, incomplete and indefinite a record as this, I think, precluded this court from ascertaining the precise nature or even the kind of public and private nuisance which the trial court found would be established. One species of public nuisance, however, the record does unmistakably show — a nuisance arising from the extreme and imminent danger produced by a great throng of people remaining for 3 days and 3 nights in open fields close by a double-track, high-speed, main-line, transcontinental railroad. On this the record is clear and certain, for the facts relating to the railroad — the number, speed and intervals of trains, the size of the expected crowds and the hours of the festival — were undisputed.
Moreover, I am unable to find in the record where the intervenors, New American Community, Inc., and John Chambless, the producers of the Sky River Rock Festival and Lighter Than Air Fair, filed an answer to the complaint or affidavits denying or traversing in any way the railroad’s contentions of extreme public danger. Even the *291pleading entitled “Petition for Writ of Certiorari, or Alternatively or in Conjunction Therewith, Petition for Writ of Mandate” filed here alleges no facts and is supported by no allegations of fact disputing the issue of public nuisance concerning the railroad. The petition rests on nothing more than the assertion that the trial court erred only in exceeding the relief prayed for in the complaint. Sponsors of the festival did not deny or avoid the allegations of fact upon which the trial court found that the rock festival would amount to a public and private nuisance. Significantly, it was shown that inter venor New American Community, Inc., had agreed to pay a $5,000 rental fee for a brief occupancy of the two fields.
The record shows almost complete agreement, too, as to the physical layout of the site. A double-track main line used by three transcontinental railroads runs north and south on an embankment through the 360-acre tract. The embankment and tracks would afford spectators a superior vantage point and view of the open-air stage. Under the embankment, there existed a 10-foot passageway which the promoters of the festival intended to use as an entrance to and exit from the field where the stage had been set up. Ticket stands were to be erected at the east entrance to the passageway. The railroad embankment thus provided a barrier between the fields adapted by the promoters as a kind of barricade under which the crowds would be channeled in moving from one field to the other. Thousands upon thousands of ticket holders and spectators would in this way be directed into the passageway when going to and from the field containing the open-air stage. Other areas of the 360-acre tract had been set aside for the food and novelty concessions, a “3-day camping area,” “free camping area,” and parking.
Mr. John H. Hertog, Superintendent of the Northern Pacific Railway Company’s Tacoma Division, in an affidavit filed in the Supreme Court supporting the injunction, stated that he had general responsibilities for all operations of the Northern Pacific Railway Company near the pro*292posed rock festival. He said, too, that he was fully familiar with the operations of the Great Northern Railway Company and the Union Pacific Railroad Company which had joint and daily usage of the same tracks running through the festival site. Twice he had inspected the two fields during the time preparations for the festival were in progress, and he attached two maps to his affidavit showing the details of the plan for the festival and the relationship of the ground and facilities to the railroad tracks. His affidavit describes the tracks as follows:
The railroad tracks in this vicinity are located upon a steep embankment, approximately 27 feet in height. The slopes of this fill are sufficiently steep to make their use for longitudinal travel and for seating for viewing festival activities inconvenient and difficult. As a consequence, many viewers and those seeking positions of vantage for travel along the tracks and for viewing festival activities would be attracted to and would be induced to use the top of the fill and the rails thereon for viewing and for travel.
The affidavit continues:
There is no evidence, upon physical examination of the proposed site, of any preparation for keeping people off the railroad tracks or any means to deny use of such railroad track areas to those attending the proposed festival, except for the use of special police or security guards.
Affiant has been informed by experienced security police personnel within the respondent company, and he believes, that under the circumstances that would prevail at such a proposed festival, at least 120 trained police or security guards would be required adequately to protect the attending public from the hazard more specifically described hereinafter. The cost of providing such a force of men, if available on such short notice, would be $4.50 per hour exclusive of normal payroll additives, and a reasonable minimum cost for such protection for the period of the proposed festival would be $5,000.
An alternative method of providing for the safety of the public attending the proposed festival would be the slowing of all trains to a speed of 5 miles per hour through the area to be used for a festival by a general *293slow order to all of the railway companies using the Northern Pacific Railway trackage. Such an order would unduly impede travel and commerce and thereby injure the public.
Pursuit of either of these alternative courses will result in substantial financial losses to respondent.
The railroad traffic along the tracks running through the proposed festival site averages approximately 40 trains per day, such trains being operated by the Northern Pacific Railway Company, the Great Northern Railway Company and the Union Pacific Railroad Company, which companies have the right of joint use of such trackage. Some of these trains travel at speeds up to 75 miles per hour, and all of them travel at such speeds that it is impossible to stop them within short distances. Because of the two-way travel, passing of trains is a fairly frequent occurrence in the vicinity of the proposed festival site. The knowledge of a train on one track and the noise attending its operation tend to induce the inexperienced person to ignore, and preclude him from hearing, the approach of trains on the second track, causing a danger not generally appreciated by the public, even those in full possession of their faculties and intending to be careful. The danger from such operation would be increased immeasurably by the noise and competition for attention to be created by the festival activities and the presence of an unsupervised crowd of 25,000 people. If a part of the people in such a gathering, even though it might be a small percentage of all those in attendance, were deprived of the use of their faculties by alcohol or drugs, as was indicated in testimony before the trial court, the danger to them and to others not so incapacitated would be increased even more.
When asked in open court at the hearing on review whether it was true that an average of 40 trains per day, passenger and freight, would operate through the festival site on the railroad embankment at speeds up to 75 miles per hour at all hours of the day and night, all parties through their counsel agreed that this was a fact. The record thus unmistakably, in my view, shows that the rock festival would constitute a nuisance endangering the health and safety of others, and would render persons insecure in life or in the use of property (RCW 7.48.120) — a nuisance *294obviously endangering the public in attendance at the festival and the passengers, train crews, and freight and equipment on the trains passing through the festival site at high speeds.
Fully apprised of the great dangers to the public and passengers that the festival would generate and apprehending a great potential legal liability, the railroad chose the way of safety and good sense. It gratuitously assumed a burden it should not have been required to bear and was jockeyed into a choice it should not have been compelled to make. To protect the public and its passengers, crews and equipment, the railroad said it would slow its trains and necessarily maintain a security force throughout a 24-hour day to keep persons off the tracks. Counsel announced the choice in open court, declaring that the railroad would do everything in its power to prevent injury, “slowing or stopping their trains, if necessary.” Recognizing that posting the $25,000 bond would probably have alleviated neither the imminent danger nor a potential liability in event of personal injuries, the railroad chose the way of moral over legal victory.
Aside from its responsibilities as a common carrier, the railroad had a right to an injunction as a private party, for a private party may maintain an action to enjoin a public nuisance on a showing of special injury. It showed that it would sustain an injury different from that sustained by the general public. RCW 7.48.210; Bales v. Tacoma, 172 Wash. 494, 20 P.2d 860 (1933); Harris v. Skirving, 41 Wn.2d 200, 248 P.2d 408 (1952). True, an injunction ought not issue at the behest of a private party if there are reasonably conflicting opinions whether there will in fact be an injury. Turner v. Spokane, 39 Wn.2d 332, 235 P.2d 300 (1951). And, if an injunction is sought at the instance of a private party, then a bond must be posted throughout all preliminary injunctive proceedings and until the injunction is final. RCW 7.40.080. Although the record here may reflect a basis for reasonably conflicting opinions as to the festival constituting a private or public nuisance generally, I see no *295room in this record for reasonably conflicting opinions as to the great danger arising from the presence of a great crowd of people remaining for so long a time in such proximity to the main line of three railroads.
Should the bond requirement have been vacated? If the injunction were temporary, then I agree it should not, but if the injunction amounted to a final rule, the bond requirement should have been canceled. The obvious purpose of the statute requiring a bond as a condition precedent to the issuance of a restraining order or temporary injunction (RCW 7.40.080) on behalf of a private party is to protect the enjoined party against damage arising from the wrongful issue of the injunctive order. After the injunction has become final and permanent, it would be an absurdity to require a private party who has rendered the public service of permanently abating or enjoining a public nuisance to remain under the expense and responsibility of maintaining the bond. Accordingly, when an injunction has become permanent or is issued upon a final judgment, a bond is not required, for it then has become a rightful injunction and a final rule in the case. State v. McCoy, 122 Wash. 94, 209 P. 1112 (1922).
The injunction sent here for review, in my opinion, was final and permanent. Plaintiffs, as private parties, commenced this action in superior court against the Thurston County Auditor and the Thurston County Commissioners claiming that the festival would create a public as well as a private nuisance, and to enjoin the county auditor from issuing a license or permit for it. New American Community, Inc., and John Chambless, the promoters, organizers and sponsors of the festival, entered the case as intervenors but actually became the real parties in interest. As intervenors, they cross-claimed for a writ of mandamus to compel the county auditor to issue them a license or permit on the basis that issuance of such a permit or license was simply a ministerial and not a discretionary function.
I can find no declarations of fact in either the application for mandamus or in its accompanying affidavit traversing *296or avoiding the allegations of public and private nuisance. Thus, at the outset of hearings on the application for an injunction, the allegations of ultimate facts upon which a finding of nuisance was sought were undenied and unavoided. Intervening promoters apparently rested their case on the idea that the festival could not as a matter of law be found to be a nuisance and that the issuance, permit or license for it, being a ministerial function, could not be legally blocked.
At no point during any of the hearings before the superior court, as far as I can ascertain, did the sponsors or the promoters of the festival ask for further time or opportunity to present evidence or make an offer of proof. No claim was made in the superior court or in this court on review that additional evidence was available to prove or disprove any of the ultimate facts in the case. Indeed, as a practical matter, time had run out; there was no time for further hearings. Intervenors, New American Community and Chambless, already in the process of incurring financial obligations and commitments for the festival, welcomed an early resolution of the injunction issue and sought an extremely speedy review of it here. On review, no party asked for further opportunity to offer additional proof.
Thus, as earlier observed, facts as to the existence of the railroad tracks, the time and duration of the festival, the physical arrangements of the fields and facilities, and the speed and number of trains passing day and night on the embankment through the festival fields were not only proved but agreed upon, explicitly and understandably, in open court on the hearing on review. The record thus shows undeniably that the festival would create a public nuisance, and that the public nuisance would develop from the imminent danger of death and injury to persons, spectators, train crews and passengers and the likelihood of damage to the railroad’s property and equipment by reason of thousands of people being drawn into the open fields adjacent to the tracks to sojourn there day and night for 3 days as 30 to 40 trains daily moved along the tracks day *297and night at speeds of up to 70 or 80 miles per hour. Nothing was offered to disprove or traverse the likelihood of this extreme danger and no claim was made that further proof was available to dispute the existence of this public nuisance, particularly as it related to the railroad main line.
The injunction, therefore, in my view, was final and permanent, and the bond requirement, I think, should have been vacated. With a permanent and effective injunction in effect, the mandate to the auditor to issue a permit would not lie. A permit or license is a device to grant a special privilege; it confers a right to do something which one otherwise would not have a right to do. 33 Am. Jur. Licenses § 2 (1941); 53 C.J.S. Licenses § 1 (1948). I doubt that the courts would order the government to confer upon intervenors the special privilege of conducting and maintaining what had finally been adjudged by a court of competent jurisdiction to be a public nuisance.
Accordingly, I would have vacated the requirement for the $25,000 bond, or any bond at all, denied the writ of mandamus, and let the injunction prevail.
Professor of Music, University of Puget Sound, Tacoma, Washington.