NOISY MACHINERY.

Waikato Times, Volume 106, Issue 17886, 5 December 1929, Page 6

NOISY MACHINERY.

INJUNCTION SOUGHT.

FAMILY’S SLEEP DISTURBED.

INJURY TO HEALTH. An application for an injunction to restrain the Alpine Ice Cream Company, Huntly,' from running its machinery in such a manner as to cause him annoyance, was brought in the Hamilton Supreme Court, to-day, by a •Huntly storekeeper named Walter Mills.

Plaintiff was represented by Mr D. J. Seymour, of Hamilton and defendant company by Mr N. Rawson. In his statement of claim plaintiff sets out that he is the owner and occupier of p. certain section of land in Huntly having a frontage to the Great South Road. On this he has erected a combined shop and dwelling in brick, which he has occupied since June 1, 1928 and in which he carries on a confectionery and tea room business. The land is situated in a residential area and the building is situate about five feet from and parallel with the southern boundary of the section. Subsequent to the erection by plaintiff of his house and shop, the defendant company, being owners of the adjoining southern section, had erected thereon a factory in brick at a distance of not more than two feet from plaintiff’s southern boundary. - They installed in the factory machinery’ and equipment for the manufacture of ice cream and since October 1928, had carried on such manufacture. Piainiiff complained that the machinery had on many occasions, been used for more than 24 hours consecutively and that the noise, constituted a grave annoyance, disturbance and inconvenience to plaintiff and his household and customers. It had and continues seriously to affect him in his tea room business and has caused him and continues to cause him serious injury to his health. Plaintiff says he has requested defendant company to abate the nuisance but the company has failed to do so. Plaintiff therefore seeks a writ of injunction restraining defendant company from using or permitting to be used the factory and machinery in such a manner as by noise or otherwise to interfere with the use and enjoyment by plaintiff of his premises. 'Plaintiff also asked for £IOO damages. Huntly to be Visited. The defence is a general denial of having caused or causing a nuisance. Mr Seymour suggested that as the whole case revolved upon the question of whether the noise did or did not cause a nuisance, His Honour should visit Huntly and hear the noise for himself. This would save calling lengthy evidence on both sides which would be of a directly contradictory nature.

His Honour agreed to visit the premises this afternoon. Mr Seymour gave defendant company credit for doing something to abate the offence, but what it had done was not sufficient. There was no sugestion of malice on the part of defendant company. The annoyance appeared to consist of pure noise, mainly and secondly of vibration. The latter appeared to be caused by a compressor, which thumped continually throughout the day and often throughout the night. The noise was such that one might not notice it at first, but it gradually got on one’s nerves. Plaintiff, during the summer months, was unable to get any sleep through the night, and in consequence he suffered a serious nervous breakdown. Mills had somewhat recovered owing to ice cream not being in great demand during the winter months. Defendants had agreed, pending the hearing of the action, to shut clown their machinery at 10 o’clock at night. Plaintiff, Walter Mills, said that prior to April last he had always enjoyed excellent health. He then got into a very low state and saw two doctors. He was told his heart was bad and that he must take a 12 months’, rest. Plaintiff said he built and entered his shop in June of last year. Defendant Company occupied their premises in the following October. Their machinery was driven by electricity.

His Honour: What kind of a noise does it make ? We hear lots of outside noises in this court, but they don’t seem to disturb us very much. (Laughter.) Plaintiff likened it to the noise of an aeroplane—a continuous hump, he added. As Bad as the Gramophones? His Honour: Is it as bad as the gramophones we hear? (Laughter.) Plaintiff said it w as such that he could not sit down and read, and he certainly could not sleep at night. His daughter used to close the ventilators at night, but always awoke with a headache. His wife sometimes managed to sleep. The noise became continuous during the Christmas period and it nearly drove him “ soft."

His Honour: What does he mean? Plaintiff: “Silly," Your Honour. Plaintiff added that he spoke to the manager of the company about th.e noise, and he agreed to try and have a silencer fitted. Plaintiff at the time his health gave out was working in the mines, his wife and daughter running the shop. Later witness spoke to the manager again one night and asked him if he could not stop the machinery at night as he (plaintiff) had to go to work each morning, and he could not get any sleep. The manager replied that he was within the law. The machinery for a period was run for the full 24 hours a day. His Honour: If the machinery were run from 8 o’clock in the morning till 5 o’clock at night would it put you out very much? It would, but I could put up with it. At present It is run till shout 9.30 and I cannot sit in the kitchen. I have to go out. ' Answering Mr Seymour plaintiff said that the company could have put its premises on the river bank portion of their section, where the machinery would not have caused any disturbance. In answer to Mr Rawson, plaintiff did not attribute his ill-health solely to this noise. He had worked in mines for’ 45 years and the two doctors had told him his heart trouble might have been caused by strain. Air Rawson: Did you not complain once of the noise of a violin being .< Continued in next column.).

constantly played near your premises?—No. His Honour: That might have been pardonable surely. (Laughter.) Complaint to Town Board. Replying further to Mr Rawson, plaintiff said he was not disturbed by the road and railway traffic which passed his door. He had complained to the Town Board, and two members of the Board had visited the premises and had admitted the noise was a nuisance. They had said they would consult with the Board’s soliuitors and see what could be done in the matter. His work in the mines had never affected his health. Arthur Edward Dobson, commercial traveller, Auckland, said he made periodical calls on Mills. He never failed to notice the noise, which was most annoying, especially at night. The noise was one which one would never get used to. Personally he could not stand such a noise for long. Barbara Mills, wife of plaintiff, said the thumping noise continued day and night. Her sleep, in consequence was only fitful. To try and shut it out at night she had put cotton wool in her ears. This had enabled her to doze off. Mr Rawson contended that the noise was not such as would disturb a normal person and that plaintiff was of a particularly nervy disposition.

William C. E. George, chairman of the Huntly Town Board, said the premises were in the business area of the town. In consequence of a complaint by Mills, he, as one of a subcommittee visited the ice cream factory. The noise was a steady pulsating one like that of a marine engine and he thought a normal person could get used to it. Huntly was a fairly noisy town. Witness had far worse noise at his own premises, though it was, perhaps, not so continuous. (Proceeding).