City of Newport v. Emery
| Decision Date | 19 December 1977 |
| Docket Number | No. 77-115,No. 1,77-115,1 |
| Citation | 559 S.W.2d 707,262 Ark. 591 |
| Parties | CITY OF NEWPORT, Appellant, v. Marvin EMERY, Floyd Robinson and Gary Finley, Appellees, James Douthit, Troy Harmon, Pank Smith, Eugene Turner, Amos Mayhue and LauraFolk, Intervenors |
| Court | Arkansas Supreme Court |
Bowie, Carlyle & Erwin by Harold S. Erwin, Newport, for appellant.
Pollard & Cavaneau, Searcy, for appellees.
This appeal involves the question of whether the lower court correctly found by a preponderance of the evidence and upon competent evidence that the construction of a sanitary landfill by the City of Newport constitutes a nuisance, in fact, of a private nature.
This action was instituted by Marvin Emery, Floyd Robinson and Gary Finley against the City of Newport to enjoin the continued construction of a sanitary landfill project approximately sixteen miles south of Newport near the village of Coffeeville, Arkansas. The site of the landfill is on the side of a hill in a wooded area. In testifying about the distance of the landfill site from appellee Robinson's home, Mr. Robinson stated:
Petitioners alleged in their complaint, inter alia, that the proposed site of the landfill is in an area that constitutes a natural drain; and that petitioners' property and residences are located at a lower elevation near the base of the hill and as a consequence, petitioners would be adversely affected by contaminates, pollutants and leachate 1 ; that the landfill will serve as a breeding place for insects, vermin and disease. Petitioners alleged that such conditions would constitute a nuisance per se; and that petitioners would suffer "special damages and damages to their real property." 2
Subsequently, petitioners amended their petition to allege, among other things, ". . . the landfill . . . will cause diminution in the value of their property." The appellant, City of Newport, denied the contention of the petitioners.
James Douthit, Troy Harmon, Pank Smith, Eugene Turner, Amos Mayhue and Laura Folk, residents and land owners in the area of the proposed sanitary landfill, intervened as party petitioners.
After hearing the evidence, the trial court rendered the following finding and decree:
The trial court's decree, in part, provides:
THE DECISION
Reviewing the evidence de novo, we are not persuaded that appellant's sanitary landfill will certainly amount to a nuisance in the neighborhood. Perhaps, the landfill may, as appellees' proof indicates, prove to be a serious annoyance to the residents in the vicinity, but on the other hand, it may turn out to be harmless.
Appellees' real estate appraiser who offered testimony to establish appellees' claim of diminution in property values, testified on cross examination as follows:
...
To continue reading
Request your trial
-
Hammond v. City of Warner Robins
...811 F.Supp. 1071, 1074 (E.D.Pa.1992); Adkins v. Thomas Solvent Co., 440 Mich. 293, 487 N.W.2d 715 (1992); City of Newport v. Emery, 262 Ark. 591, 559 S.W.2d 707 (1977). Anticipating a potential future nuisance is non-actionable because it requires a conclusion not based on existing facts. K......
-
Southeast Arkansas Landfill, Inc. v. State, 92-1360
...use and enjoyment of nearby property. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987); City of Newport v. Emery et al., 262 Ark. 591, 559 S.W.2d 707 (1977). Equity clearly will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the ......
-
Sugarloaf Min. Co. Permit No. P-272-M-Co, Matter of, P-272-M-CO
...Arkansas Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982), with "a role of limited scope" City of Newport v. Emery, et al., 262 Ark. 591, 559 S.W.2d 707 (1977). This narrow scope does not, however, permit this Court to allow an agency to disregard the law because the A.P.A. ......
-
Miller v. Jasinski, CA
...is simply the extent of the injury, i.e. the number of the persons suffering the effects of the nuisance. City of Newport v. Emery, 262 Ark. 591, 559 S.W.2d 707 (1977); Ark. Release Guidance Foundation v. Needler, 252 Ark. 194, 477 S.W.2d 821 In his thirty page memorandum the chancellor fou......