Russell v. Theirry, No. Cv01 38 51 98 (Mar. 5, 2003)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION MOTION FOR CONTEMPTThe present case is an outgrowth of the use by the defendants of a three-horsepower pump utilized to operate a waterfall and for the feeding of fish in a pond created by the defendants on their property. Following an evidentiary hearing and two visits by the court to the property, the court issued an order in December of 2001 enjoining the defendants from operating the three-horsepower pump until such time as it can be operated so as to reduce the noise level to 44 decibels at the property line. The plaintiffs now seek an order of the court finding the defendants in contempt because they believe the noise emanating from the pump is an excess of the court's order. In October 2002 the plaintiff, who operates an audio production studio, utilized a Radio Shack sound meter and recorded decibel levels between 51 to 61. The plaintiff's testimony was received as fact witness and not as a expert witness.

The defendants presented evidence by their expert witness that the sound levels were measured on April 18, 2002 decibel reading at the property line of 45.1 decibels. When corrections were made in accordance with industry standards, the reading became 43.9 decibels. The expert returned to the property in July after further modifications had been made to the pump house by the defendants and, at that time, the measurements were read at 41.6 uncorrected. The expert returned again in October 2002 and found the readings of 41.6 and 41.9 uncorrected. If corrections had been made the readings would have been lower. It is clear that if the testimony of the defendant's expert is credited, which the court does, the defendants are in compliance with the court's order issued in December of 2001. It is also clear that the defendants have utilized reasonable efforts to reduce the noise levels including the purchase of insulating material from the plaintiff's expert who did not testify at the hearings held in January 2003.

The sound recordings utilized by the plaintiff are of little use to the court. The recording equipment utilized by the plaintiff has various settings including a C setting which picks up noise not audible to the human ear as well as a fast and slow setting. Fast settings are used for impulsive noises for short duration and the slow setting is utilized for the measuring of more consistent noise. The plaintiff intentionally utilized a C setting and primarily the fast setting. However, this case involves noise audible to the human ear and does involve noise that cannot be detected by the human ear. As an example of the differences that can be created by utilizing different settings, the identical equipment used by the plaintiff in his measurements in the October evening was brought into a quiet courtroom. On the C setting readings ranged from 61 decibels to 68 decibels. On the A setting the reading was below 50 as the equipment is not capable of measuring below 50. Accordingly, the court finds the defendants in compliance with the court order and the motion for contempt is denied.

Rush, Judge

3/5/03