1995.07.07

1992 (O) 1504

Minshu Vol. 49, No. 7 at 2599

Judgment concerning the case where people living near an ordinary national road and other roads claimed an injunction against the use of the roads by alleging that they suffered damage due to car noise, etc. from the roads, and the court determined that there was no illegality as a condition for granting an injunction

Case to seek noise and emission regulations, etc. for national road Route No. 43 and Hanshin Expressways

Judgment of the Second Petty Bench, dismissed

Osaka High Court, Judgment of February 20, 1992

Where people living near an ordinary national road and other roads suffer damage due to car noise, etc. from the roads, given the facts that the damage that the people living near the roads currently suffer and will also suffer in the future with high probability is nothing other than nuisance in their daily lives, i.e. interference with their sleep and with their conversations face-to-face or on the phone, family time, listening of TV and radio, and mental distress due to the aggravating combination of these problems, whereas the roads provide benefits, which are irreplaceable and considerable in terms of quality and quantity, for the inter-regional traffic and industrial and economic activities, it cannot be said that there is illegality as a condition for upholding a claim made by these people living near the roads to seek an injunction to prevent such car noise, etc. from penetrating into their living environment beyond a certain level measured by numerical values.

Article 2, paragraph (1) of the Act on State Liability for Compensation, Article 709 of the Civil Code

Article 2, paragraph (1) of the Act on State Liability for Compensation
(1) When any defect in the installation or administration of a road, river or any other public works has caused damage to another person, the State or the public entity concerned shall be liable to compensate such damage.

Article 709 of the Civil Code
A person who has intentionally or negligently infringed any right of others shall be liable to compensate any damages resulting in consequence.

The final appeal is dismissed.
The appellants shall bear the cost of the final appeal.

I. Concerning Reasons for Final Appeal I argued by the appeal counsels, KOMAKI Hideo, TAKAHASHI Takashi, SAEKI Yuzo, TANAKA Hideo, FUKAKUSA Toru, KAKEHI Munenori, MATSUYAMA Hideki, ADACHI Masaaki, ITO Kaho, UEHARA Kunihiko, URAI Isao, OTSUKI Yukio, ONUKI Seiichiro, KAKIZOE Motoo, KAWASE Choichi, KAWANISHI Yuzuru, KENSHO Kenichiro, KINOSHITA Motoni, KIMURA Yujiro, KIMURA Haruko, KOTANI Masamichi, TANAKA Osamu, TANAKA Tadafumi, DOI Kenzo, NAKAGAWACHI Ryokichi, NAGATA Rikizo, NISHIMURA Tadayuki, NOZAWA Ken, NODA Teigo, HASHIBA Osamu, FURUMOTO Eiji, FUKUI Shigeo, FUJIMOTO Tetsuya, FUJIWARA Seigo, HONDA Takuho, MAEDA Osamu, MAEDA Mitsugi, YAMAZAKI Makimi, YAMANOUCHI Yasuo, WATANABE Katsuyuki, WATANABE Mamoru, WATANABE Yoshiyasu, MASUDA Masayuki, ISHIBASHI Kazuaki, INOUE Yoshio, OTOSHI Kenzo, KANEKO Takeshi, KIMURA Yasuo, SUDA Masakatsu, HARADA Yutaka, MANABE Shoichi, YAMAZAKI Masaho, MINETA Katsuji, and HIWATASHI Shunichi
In summary, the appeal counsels argue that the court of prior instance did not find the fact that due to the noise, emissions, etc. from cars driving on an ordinary national road Route 43 and two expressways of Hyogo Prefecture, Kobe-Nishinomiya Route and Osaka-Nishinomiya Route (these roads shall hereinafter be referred to as the “Roads”), the appellants of final appeal living near the roads suffer physical damage such as hearing disorder and respiratory diseases, and in this respect, the judgment of prior instance is illegal for violation of the reasonable inference rule, violation of the rule for admission of evidence, insufficient examination, defective reasons, and inconsistent reasons. The fact finding and determination of the court of prior instance on the alleged point, in light of the evidence mentioned in the judgment of prior instance, can be affirmed as justifiable, and the fact finding and determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument is nothing other than a criticism of the admission of evidence or fact finding, which come under the exclusive jurisdiction of the court of prior instance, or a claim criticizing the judgment of prior instance based on their own views or misconstruction of the judgment, and therefore cannot be accepted.

II. Concerning Reasons for Final Appeal II
In summary, the appeal counsels argue as follows. The court of prior instance, without determining the density of nitrogen oxide contained in the air, which has an impact on human health, concluded that the current air pollution due to emissions from the Roads cannot be deemed to have an impact on the health of people living near the roads, and that the damage that the appellants living near the Roads suffer due to the noise, emissions, etc. from the roads is nothing more than nuisance. On the other hand, the court of prior instance found that the Roads are of a public nature just because the number of cars driving on the Roads is increasing, or in short, there are needs for the Roads, and that there is no alternative road, although the appellants do not seek discontinuation of the use of the Roads. The judgment of prior instance which dismissed the appellants’ claim for an injunction on the grounds of these facts is illegal in its erroneous construction and application of laws and regulations with regard to the determination of the tolerable limit to be considered in deciding on a claim for an injunction, and it is also illegal for violation of the rule for admission of evidence, violation of the reasonable inference rule, omission in a determination, and defective reasons.
The court of prior instance legally determined the following facts. The noise, etc. as found by the court of prior instance penetrated into the living environment near the roads almost all day long, and this caused infringement to the appellants living there, or more specifically, they suffered, due to the noise, interference with their sleep and with their conversations face-to-face or on the phone, family time, listening of TV and radio, and also suffered mental distress due to the aggravating combination of these problems. The appellants who live within 20 meters from the edges of the Roads were also subject to tangible and intangible burden, such as their laundry getting dirty due to the suspended particulates contained in car emissions. On the other hand, the Roads have made considerable contribution to the intra-regional traffic mainly for distribution of industrial supplies, and as the number of cars in use increased and the share of car transportation in the total cargo and passenger transportation increased, the contribution of the Roads also increased. In addition, the court took into consideration the circumstances where the damage that the appellants living near the Roads currently suffer and will also suffer in the future with high probability is nothing other than nuisance in their daily lives, whereas the Roads provide benefits, which are irreplaceable and considerable in terms of quality and quantity, not only for people and companies near the Roads but also for the inter-regional traffic and industrial and economic activities. In conclusion, the court of prior instance determined that there is no illegality as a condition for upholding the appellants’ claim for an injunction.
The factors to be considered in the case where people living near a facility such as a road claim an injunction against the use of the facility and the court is to determined whether or not there is illegality as a condition for granting an injunction, are almost the same as the factors to be considered in the case where such people claim damages and the court is to determined whether or not there is illegality as a condition for granting damages. However, since the difference in the subject matter of these claims, i.e. an injunction against the use of the facility in the former and monetary damages in the latter, necessarily leads to a difference in terms of the degree of importance of each factor to be considered when determining illegality, it is not unreasonable even if the court makes different determinations on illegality between these cases. From this standpoint, the determination of the court of prior instance can be affirmed as justifiable, and the determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument is nothing other than a criticism of the admission of evidence or fact finding, which come under the exclusive jurisdiction of the court of prior instance, or a claim criticizing the judgment of prior instance based on misconstruction of the judgment, and therefore cannot be accepted.

III. Concerning Reasons for Final Appeal III
In summary, the appeal counsels argue that despite the fact that the damage that Appellant A, B, C, and D suffered from the noise and emissions from the Roads is as serious as the damage suffered by other appellants whose claim for compensation for damage is upheld, the court of prior instance dismissed the aforementioned appellants’ claim for compensation for damage, and in this respect, the judgment of prior instance is illegal for erroneous construction and application of laws and regulations, and also illegal for defective reasons, violation of the rule for admission of evidence, and violation of the reasonable inference rule. However, the fact finding and determination of the court of prior instance, in light of the evidence mentioned in the judgment of prior instance, can be affirmed as justifiable, and the fact finding and determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument is nothing other than a criticism of the admission of evidence or fact finding, which come under the exclusive jurisdiction of the court of prior instance, or a claim criticizing the judgment of prior instance based on misconstruction of the judgment, and therefore cannot be accepted.

IV. Therefore, according to Article 401, Article 95, Article 89, and Article 93 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice KAWAI Shinichi
Justice NAKAJIMA Toshijiro
Justice ONISHI Katsuya
Justice NEGISHI Shigeharu