dissenting:
I dissent from the decision of the majority in this suit affirming, without modification, the final decree of the circuit court which, as indicated in the majority opinion, *613perpetually enjoined the defendants from operating or maintaining, at its present location, on property owned by them, an admittedly lawful business of selling used automobiles, and by mandatory injunction required the defendants, within thirty days from the entry of the decree, to remove from their land numerous designated articles of equipment, including all automobiles, trucks, light poles, wires, lights, installations and structures used in connection with the operation of that business. By that harsh and drastic action a court of equity summarily destroys a legitimate business, inflicts substantial loss upon its owners, and without affording them an opportunity to alter or adjust its operation, materially restricts and impairs the vested property right of the defendants to use and enjoy their land and the designated articles of equipment located on it. I can not subscribe to such an arbitrary and unwarranted result which, in my opinion, constitutes a manifest invasion of established property rights of the defendants and, in this instance, is neither just nor necessary.
The plaintiffs contend, in seeking injunctive relief, and the majority holds, that though the operation conducted by the defendants is a lawful business and is not a nuisance as a matter of law, its location in an exclusive residential district, the excessive number of lights and the period of their use and the noise, in connection with its operation, the unsightly appearance of certain structures and objects on the premises, and the resultant reduction in the value of the properties of the plaintiffs constitute the business, as so conducted, a nuisance in fact because of the methods employed. With that conclusion I do not agree.
It is well settled by prior decisions of this Court that a lawful business does not constitute a nuisance as a matter of law. State ex rel. Ammerman v. City of Philippi, 136 W. Va. 120, 65 S. E. 2d 713; Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454; The Cen*614tral National Bank v. City of Buckhannon, 118 W. Va. 26, 188 S. E. 661; Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691, 54 L. R. A. 545; McGregor v. Camden, 47 W. Va. 193, 34 S. E. 936. A lawful business, however, may constitute a nuisance in fact by reason of its improper location or the manner in which it is conducted. Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454; Spears v. Goldberg, 122 W. Va. 514, 11 S. E. 2d 532, 12 S. E. 2d 513; Lyons v. Viglianco, 122 W. Va. 257, 8 S. E. 2d 801; McGregor v. Camden, 47 W. Va. 193, 34 S. E. 936.
In State ex rel. Ammerman v. City of Philippi, 136 W. Va. 120, 65 S. E. 2d 713, this Court held that a business operated in a town for repairing, recapping or vulcanizing automobile tires is not a nuisance per se. This Court has also held in The Central National Bank v. City of Buckhannon, 118 W. Va. 26, 188 S. E. 661, that a gasoline filling station in a city is not a nuisance per se, in Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691, 54 L. R. A. 545, that a blacksmith shop or a machine shop in a town is not a nuisance per se, and in McGregor v. Camden, 47 W. Va. 193, 34 S. E. 936, that oil and gas wells are not nuisances per se.
In Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454, this Court refused to abate as a nuisance, and to enjoin its operation, an automobile wrecking business conducted on land owned by the defendant, in a section of the city of Parkersburg which contained both residences and business establishments, on which he had assembled about 125 old automobiles and on which he had erected a barbed wire fence seven or eight feet in height, and in the syllabus used this language: “Where a section of a city is not a clearly established residential community, equity will not be warranted in excluding therefrom as a nuisance an automobile wrecking business merely on the ground of unsightliness.”
*615The grounds relied on by the plaintiffs and on which the injunctive relief awarded them is based, consisting of the noise produced, the light, and the unsightliness of the objects and the structures, used in connection with the operation of the business of the defendants, considered separately or collectively, are obviously not sufficient to support or justify the conclusion that the business of the defendants, as presently conducted, constitutes a nuisance.
Noise alone may create a nuisance; but whether noise does or does not create a nuisance depends upon the time, the locality, and the degree of the noise. Ritz v. The Woman’s Club of Charleston, 114 W. Va. 675, 173 S. E. 564, 182 S. E. 92; Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241. Every noise that may occur in connection with a business, however, does not create a nuisance. To create a nuisance a noise which occurs in a residential district must be unusual and recurrent, and it must prevent sleep or disturb materially the rest and the comfort of the residents, or cause them great personal discomfort and continual annoyance. See Ritz v. The Woman’s Club of Charleston, 114 W. Va. 675, 173 S. E. 564, 182 S. E. 92. The rule is that a noise which creates a nuisance must be such as materially to interfere with and impair the ordinary physical comfort of existence of ordinary people. Powell v. Bentley and Gerwig Furniture Company, 34 W. Va. 804, 12 S. E. 1085, 12 L. R. A. 53. The opinion in the Powell case, prepared by Judge Holt, contains these pertinent statements:
“Every man, as we have seen, has the exclusive dominion and the right to the full and exclusive enjoyment of his own property, to do with it as he pleases. His neighbor has the same right over his own property. Hence it follows as the duty of each to so use his own as not to injure that of the other, each one’s duty qualifies his own right and creates a corresponding right in the other.
“ * * * . But this duty must be taken with qualifica*616tions, for, in the nature of things and of society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor.”
In State ex rel. Ammerman v. City of Philippi, 136 W. Va. 120, 65 S. E. 2d 718, the opinion uses this language: “Considerable evidence is produced by respondents tending to show that residents of the vicinity wherein petitioner has heretofore operated his business were greatly annoyed by noises and obnoxious odors arising therefrom. Petitioner controverts this and a number of witnesses support his contention. We think it clear, and do not understand respondents to contend otherwise, that the business conducted by petitioner is not a nuisance per se. No doubt some noises and some odors obnoxious to some individuals result therefrom. This is not sufficient, however, to constitute a business a nuisance per se.”
In Ritz v. The Woman’s Club of Charleston, 114 W. Va. 675, 173 S. E. 564, 182 S. E. 92, the defendant was enjoined from conducting dances after nine o’clock at night at its club house near the homes of the plaintiffs in a residential section of Charleston. Previous to the institution of the suit and until June, 1930, fifty eight public dances, which continued far into the night, had been held at the club house. The evidence showed that those dances were patronized by a large number of persons many of whom came to them in automobiles; that all of them were very noisy; that some of them were attended with boisterous, drunken and unseemly conduct; that some of the dancers committed indecent trespasses on neighboring properties; and that the dances deprived the plaintiffs of rest and sleep and otherwise greatly annoyed them. From June until November, 1930, the defendant discontinued dances at the club house but between November, 1930, and April, 1931, when the suit was instituted, ten private *617dances were held and those dances lasted each night until midnight. The evidence, however, showed that there was little, if any, improvement in the conduct of the private dances as compared to the conduct of the dancers at the previously conducted public dances; that the noises at the private dances, including the music and the sounds caused by the arrival and the departure of the dancers, their laughter and loud conversation in calling to each other, the operation of the automobiles, and the blowing of horns, were as irritating as the noises which occurred at the public dances. Upon the foregoing facts, established by the evidence, the circuit court did not prohibit all dances at the club house but enjoined the continuance of dances there after nine o’clock at night. On appeal that decree of the trial court was affirmed by this Court.
In Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241, a skating rink, located about thirty feet from the residence occupied by two of the plaintiffs in Charleston was held to be a nuisance and enjoined because of the noise produced by its operation. In that case the evidence clearly showed that the rink was operated almost every day and night except Sunday and that the noise caused by the skaters, which was loud and similar to the sound of a train of cars crossing a covered bridge, and the noise caused by the crowds of people attending the rink, by the shouts of persons in the audience, and by the sounds in connection with the skating, deprived the persons occupying two of the homes of the plaintiffs of sleep and rest, materially disturbed their comfort and the enjoyment of their homes, and required one of the plaintiffs to leave and vacate his residence.
The noise produced by the operation of the business of the defendants in this case is of an entirely different character from the noises which were shown to exist in the Ritz case and in the Snyder case and which justified the injunction awarded in each of those cases. Those noises were created by large groups of persons, some of whom engaged in extremely loud conversation and boist*618erous and disorderly conduct, and included shouting and the sounding of automobile horns late at night. No noise or conduct of that sort has occurred in connection with the business of the defendants. The only noise which it has created consisted of the ordinary conversation of persons in small groups, the average number of which was eleven during any hour of the weekday business period of from about eight thirty o’clock in the morning until about nine o’clock at night, some profanity heard on two occasions by one of the plaintiffs while he was outside of his house, the sound of unloading motor cars on one occasion, the sound of lowering the hoods of automobiles, and the sound caused by automobiles in arriving at, travelling upon, and departing from the land owned by the defendants. These noises were neither strange nor of unusual intensity. They were audible “to some extent” at the residence of one of the plaintiffs but there is no showing that they deprived the plaintiffs of sleep or materially disturbed their comfort or their enjoyment of their homes. They were of the same general character of the noises produced by the heavy daily vehicular traffic consisting of the movement of approximately 3200 automobiles which occurs during the day and at night upon one of the main public highways on which the properties of the plaintiffs and the defendants abut. The sounds caused by the conversations of persons and the operation of the automobiles on the premises of the defendants were merely the usual and ordinary sounds produced by such occurrences in a residential, a business, or an industrial community and such sounds cause only slight and trivial annoyance or inconvenience in any type of community to persons of normal sensibilities. They do not warrant restraint by injunction and they do not justify an injunction in this instance.
“No one is entitled to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells.” Collins v. *619Wayne Iron Works, 227 Pa. 326, 76 A. 24, 19 Ann. Cas. 991. See also Hannum v. Gruber, 346 Pa. 417, 31 A. 2d 99. In 66 C. J. S., Nuisances, Section 22a, the text contains these statements: “Generally, noise is not ex necessitate a nuisance, even when disagreeable. It has been stated that no one is entitled to absolute quiet in the enjoyment of his property, but is limited to a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. Thus, it has been held that as many useful acts are necessarily attended with more or less noise, reasonable noises in an appropriate locality are not necessarily nuisances, even though they are disagreeable and annoying.” See also 39 Am. Jur., Nuisances, Section 47. Certainly the sounds incident to the ordinary operation of automobiles are not inconsistent with the standard of comfort which prevails in any community in which people of ordinary sensibilities reside and in which automobiles are customarily used and operated.
The foregoing comments directed to the noise of which the plaintiffs complain apply with equal force to the lights used by the defendants, the ultimate effect of which was to illuminate the lawns and the porches of the residences of the plaintiffs and to cast their rays into the living room, the library, the dining room, the kitchen, and the bath room of the residence of one of the plaintiffs, and the bed room of the residence of another plaintiff, between approximately six thirty o’clock in the evening and nine o’clock at night. The light in the living room, the library, the dining room, the kitchen, the bed room and the bath room could readily and effectively be prevented by the normal use of shades or drapes without inconvenience to the occupants of those rooms and without impairing their adequate ventilation. At most the lights, like the noise, cause only slight inconvenience and trivial annoyance which do not justify the award of injunctive relief by a court of equity. They should not and, in my judgment, they do not, materially interfere *620with or impair the ordinary comfort of existence of people of ordinary sensibilities.
Unlike smoke, gases, dust and noxious odors, light is not inherently harmful and it does not unreasonably or substantially interfere with the ordinary use or enjoyment of property. See Amphitheatres, Inc. v. Portland Meadows, 184 Ore. 336, 198 P. 2d 847, 5 A. L. R. 2d 690. In that case recovery was denied the plaintiff, which operated an outdoor motion picture theatre, of damages from the defendant, which operated a race track on adjoining land, both projects being outside the limits of a nearby city, for injury to and interference with the motion pictures exhibited by the plaintiff caused by flood lights operated by the defendant at a distance of 832 feet from the motion picture screen of the plaintiff. The court held that the operation of the lights by the defendant did not constitute either an actionable trespass or a nuisance. In the opinion the court said:
“If the cases involving smoke, noxious odors, flies and disease germs are claimed to be analogous to the case at bar, it must be answered that in every case the activity or thing which has been held to be a nuisance has been something which was, 1, inherently harmful, and 2, an unreasonable and substantial interference with the ordinary use or enjoyment of property. No one can contend that light is inherently harmful to persons in the ordinary enjoyment of property.” * * * .
“By way of summary, we have found no case in which it has been held that light alone constitutes a nuisance merely because it damaged one who was abnormally sensitive or whose use of his land was of a peculiarly delicate and sensitive character.” * * *
“We do not say that the shedding of light upon another’s property may never under any conditions become a nuisance, but we do say that extreme caution must be employed in applying any such legal theory. The conditions of modern city life impose upon the city dweller *621and his property many burdens more severe than that of light reflected upon him or it.”
In Indian Refining Company v. Berry, 226 Ky. 123, 10 S. W. 2d 630, the action by the plaintiff was to recover damages for injury to her residence caused by soot and smoke and odors from gasoline and oil originating in and emanating from a filling station operated by the defendant on an adjoining lot, by the unsightliness of the filling station, and by powerful electric lights used in its operation which interfered with the privacy of the home of the plaintiff. A recovery by the plaintiff was denied. In the opinion the court used this language: “It is not every annoyance, however, that will give a right of action to the person annoyed. The soot and smoke from the heating apparatus at the filling station cannot be different from the smoke and soot from other similar appliances in the vicinity. * * * . Consequently there can be no recovery for the soot and smoke originating in the stove at the filling station. The odors complained of arose from the gasoline and oil, and are not uncommon since the advent of automobiles. It is not shown that there is any reasonable way to operate a filling station without producing the odors of gasoline and oil. Such smells may be offensive to particular individuals, but there is nothing in this record to show any unusual or unnecessary operation of the plant, or violation of the rights of adjoining owners. It is equally true that a person has a right to erect and maintain electric lights on his premises, and people cannot complain that a neighbor uses numerous and brilliant lights on his own land. Light is essential to the operation of a filling station at night, and it is not shown that appellant used excessive or unnecessary illumination.”
In 39 Am. Jur., Nuisances, Section 30, the text contains these pertinent statements: “In many cases, the question whether a nuisance has been created depends on the degree of injury done, for not every inconvenience, discomfort, or annoyance is sufficient to constitute a *622nuisance. But what amount is necessary cannot be defined, and no precise rule can be laid down for determining it. It must be decided according to the circumstances of the particular case, and is largely a question of fact. There must be an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort.” See also Higgins v. Decorah Produce Company, 214 Iowa 276, 242 N. W. 109, 81 A. L. R. 1199; Metzger v. Hockrein, 107 Wis. 267, 83 N. W. 308, 81 Am. St. Rep. 841, 50 L. R. A. 305; City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 20 Am. St. Rep. 123, 8 L. R. A. 808.
The unsightliness of certain objects and structures present and used in connection with the business of the defendants is not sufficient to render such business a nuisance or to justify its abatement as such. “The fact that a thing is unsightly, or that it offends the aesthetic sense, is not in itself sufficient to make it a nuisance.” and “Mere unsightliness or other conditions of a purely aesthetic nature are alone insufficient to justify a court’s interference.” 39 Am. Jur., Nuisances, Sections 29 and 70. “An owner’s use of property cannot be restricted on purely aesthetic considerations.” 66 C. J. S., Nuisances, Section 19d.
As already pointed out this Court, in Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454, refused to hold that an automobile wrecking business, located in a section of a city which was not an established residential community, constituted a nuisance merely because of its unsightliness. Though the majority opinion in that case contains statements to the effect that unsightly objects should be properly placed and not so located as to be unduly offensive to neighbors or the public, that an automobile filling station and tire repair shop may be a nuisance by reason of its location, and that a business not *623pleasing to view should not be located in an unquestioned residential community, the soundness of the proposition that mere unsightliness alone does not create a nuisance or justify injunctive relief to abate it, and the support of that proposition by the weight of judicial authority, are convincingly demonstrated by the concurring opinion prepared by Judge Kenna; and the conclusion reached in that case rejects the theory that a nuisance results solely from aesthetic considerations. This Court has also rejected that theory in State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W. Va. 189, 117 S. E. 888; State ex rel. Sale v. Stahlman, 81 W. Va. 335, 94 S. E. 497, L. R. A. 1918C, 77; and Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L. R. A. 1915C, 981.
In the Nunley case this Court said that the unsightliness of a proposed garage, a permit for which was refused by the defendants for that reason and for other reasons, was not a valid ground for such refusal and in the opinion used this language: “The fourth reason is that the garage would be unsightly, very obnoxious and obectionable to the residents of said block. This reason is fully discussed in the case of Fruth v. Board of Affairs, 75 W. Va. 456. Judge Miller, in delivering the opinion of the court, says, referring to sec. 118 and 128 of Freund on Police Powers: ‘The latter sections say, in accordance with the holdings of the courts everywhere, that mere beauty and symmetry of streets are for mere aesthtic purposes, having no reference to the safety, health and morals or general welfare of the community at large, the state may not under the police power regulate or control the use by the owner of private property.’ State ex rel. Graham Sale v. C. O. Stahlman et al, 81 W. Va., 335, says in this connection: ‘Nor can it be imposed to effect symmetry of the streets or section.’ ”
In the Fruth case an ordinance which undertook to establish a building line upon a street solely for aesthetic reasons was held to be invalid. Cases in other juris*624dictions which hold that an object which is unsightly or offends the aesthetic sense is not solely for that reason a nuisance and may not be abated on that ground alone are Alabama Power Company v. Stringfellow, 228 Ala. 422, 153 So. 629; White v. Bernhart, 41 Idaho 665, 241 P. 367, 43 A. L. R. 23; Whitmore v. Brown, 102 Me. 47, 65 A. 516, 9 L. R. A., N. S., 868, 120 Am. St. Rep. 454.
Though the adverse effect of the use of property, upon the value of other premises in the neighborhood, is a factor, it is not a controlling factor in determining the existence of a nuisance. 66 C. J. S., Nuisances, Section 19d. If the use of property does not create a nuisance, it may not be enjoined or a lawful business abated merely because it renders neighboring property less valuable, and there can be no recovery of damages for the diminution in value of neighboring property caused by the lawful use of property in the neighborhood. 66 C. J. S., Nuisances, Section 19d. “It is not enough that the act complained of diminishes the value of the plaintiff’s property, or increases the rates of insurance on adjoining property, although depreciation in the market or rental value of his property may be a proper element of damages where a nuisance is otherwise established.” 39 Am. Jur., Nuisances, Section 28. In Indian Refining Company v. Berry, 226 Ky. 123, 10 S. W. 2d 630, in which it was held that a gasoline filling station was not a nuisance the court said: “When the injury caused by the prosecution of a lawful business is not sufficient to constitute a nuisance in the legal sense, the mere fact that it depreciates the value of property does not give rise to a cause of action. Pearson & Son v. Bonnie, 209 Ky. 307, 272 S. W. 375, 43 A. L. R. 1166.” In Batcheller v. Commonwealth ex rel. Rector and Visitors of University of Virginia, 176 Va. 109, 10 S. E. 2d 529, in which the location of an airport upon property adjoining the property of the plaintiff was held not to be a nuisance, the opinion contains these quotations from the case of Swetland v. Curtiss Airports Corporation, 41 F. 2d 929: “* * * if it be conceded that the property of the plaintiffs *625will decrease in value if the airport is permitted to operate, that alone would not entitle the plaintiffs to an injunction. Hazlett v. Marland Refining Co., 30 F. (2d) 808; 46 C. J. 682, Note 25. If the airport is not a nuisance, its operation may not be enjoined because to some extent the value of the plaintiffs’ property will be decreased for the purpose to which it is now devoted.” See also O’Malley v. Macken, 182 Minn. 294, 234 N. W. 323; Dawson v. Laufersweiler, 241 Iowa 850, 43 N. W. 2d 726. As the depreciation in the value of the properties of the plaintiffs, caused by the location and the operation of the business of the defendants, does not of itself constitute a nuisance, and as that business as presently conducted by the defendants is not a nuisance, the diminution in the value of the properties of the plaintiffs does not entitle them to injunctive relief.
For the reasons stated and under the authorities cited and discussed in this dissent, I would dissolve the injunction awarded by the circuit court and dismiss this suit at the cost of the plaintiffs.
Inasmuch, however, as the majority holds that the business as presently conducted by the defendants constitutes a nuisance in fact and the injunction, which the majority opinion concedes is “drastic”, compels the defendants to discontinue the business which they are now conducting and to remove all of the fixtures from the lot owned by them, and inasmuch as I disagree with the statement in the majority opinion that “no modification can be made which will permit the efficient exercise of the defendants’ rights to conduct this particular business at that place, and still protect the plaintiffs against the injury which must result to them therefrom”, which in my judgment is not justified by the evidence, I would modify and limit the scope of the injunction to require the defendants to shorten the period of the use of the lights or to reduce their number or intensity, or both, or to prevent, by the use of appropriate shades, screens or hoods, their rays from extending to the properties of the plaintiffs, which the evidence shows can be done, and *626with that restriction on the use of the lights, which would remove the main source of annoyance or inconvenience of which the plaintiffs complain, I would permit the defendants to retain and use on their property the articles and the equipment, which the injunction now requires them to remove, and to continue to operate their business at its present location. Without a just and proper modification of the injunction which would permit the defendants to continue the lawful business in which they are now engaged and which would prevent its complete destruction, the facility with which the hut, the lights, the poles and the displays necessary to the operation of their business, can be “transported and used at another location”, as suggested in the majority opinion, is of no benefit to the defendants and offers them no satisfaction or no effective substitute for the compulsory loss and discontinuance of a lawful business.
In this instance the majority should have followed and applied the general rule with respect to the scope of the injunction. That rule is that “The decree should not enjoin more than that which constitutes the nuisance, and should never go beyond the requirements of the particular case. Where the injury complained of results from acts that are not a nuisance per se, but only such by reason of the manner in which they are done or the surrounding circumstances, the court will not grant an injunction in such form as absolutely to prohibit the defendant’s use of his property, if it is possible to frame a decree which in another form will give the plaintiff the relief to which he is entitled.” 39 Am. Jur., Nuisances, Section 172. See McIntosh v. Brimmer, 68 Cal. App. 770, 230 P. 203; Bartlett v. Moats, 120 Fla. 61, 162 So. 477; Pigford v. State, 184 Miss. 194, 183 So. 259; Weaver v. Bishop, 174 Okla. 492, 52 P. 2d 853; Collins v. Wayne Iron Works, 227 Pa. 326, 76 A. 24, 19 Ann. Cas. 991.
Recalling the pertinent expression of Judge Dent in his dissenting opinion in Town of Davis v. Davis, 40 W. Va. 464, 21 S. E. 906, in which this Court, being evenly divided, affirmed the judgment of a circuit court in up*627holding the action of a municipal council in abating a merry-go-round as a nuisance, that “The power to abate, if it exists, should never be exercised by a town council when the power to regulate will accomplish the same end without the destruction of property or of a lawful avocation.”, I similarly assert that the power to abate, which resides in a court of equity, should not be exercised, as it has been in this case, when its power to regulate would accomplish a just and proper result “without the destruction of property or of a lawful avocation.”
I am authorized to state that Judge Riley concurs in the views expressed in this dissenting opinion.