Wilms v. Hand

SCHOTTKY, J. pro tem.

Defendants appeal from a preliminary injunction restraining them from permitting the dogs harbored and maintained by them at their place of business “from annoying and disturbing the peace and comfort of plaintiffs and such guests as plaintiffs Martin Wilms, Sara Wilms, Bari M. Wilms and Marilyn Wilms may have in the motor court operated by said plaintiffs.”

Plaintiffs Wilms operate a motor hotel at Millbrae. In the motor hotel, which faces El Camino Real, a well-known public highway, there are 37 apartments designed for use and occupation by persons as temporary places, and plaintiffs Earl Wilms and Marilyn Wilms also reside there. Defendant P. H. Hand is a veterinarian and he and defendant Anna Lee Hand conduct a dog and cat hospital on property adjacent to said motor hotel.

Plaintiffs commenced an action against defendants alleging, in addition to the facts hereinbefore set forth, that defendants have kept, harbored and maintained between 80 and 100 dogs; that on April 22, 1949, and from day to day thereafter, these dogs barked, howled, yelped and whined intermittently both during the daytime and at night, and have interfered with and disturbed the comfort, rest and sleep of plaintiffs Earl Wilms and Marilyn Wilms and also have disturbed many guests of the motor hotel in their sleep, causing them to leave said motor hotel to the detriment of plaintiffs Wilms. The complaint contained a second cause of action in which the other plaintiffs also alleged annoyance and disturbance caused by the dogs.

Defendants filed an answer in which they alleged that defendant P. H. Hand was a veterinarian and had operated his said business prior to the commencement of the erection of any buildings on land belonging to plaintiffs Wilms; that the number of dogs kept by them in their place of business never at any time exceeded 65; that they had invested more than $80,000 in their improvements and that the improvements have been constructed to prevent escape of any noises; and they denied the allegations of the complaint as to the noise and disturbance, and annoyance.

[813]

A hearing was held on plaintiffs’ application for a preliminary injunction. Plaintiffs introduced a number of affidavits and also called several witnesses, and the affidavits and testimony substantiated the allegations of the complaint. Stephanie S. Shea, one of the plaintiffs, testified that at a distance of 1,000 feet from defendants’ pet hospital she could hear the dogs barking. She testified that “the noise is absolutely terrific. You can’t explain it, it is just a perfect bedlam.” She stated that she heard it in the morning and in the afternoon and that before the suit was filed she had also heard it at night. The evidence in support of plaintiffs’ complaint is so overwhelming that we deem it unnecessary to detail it further.