Brown v. Arkansas Central Power Co.

• Decision Date: 23 May 1927
• Docket Number: (No. 18.)
• Citation: Brown v. Arkansas Central Power Co., 294 S.W. 709, 174 Ark. 177 (Ark. 1927)
• Parties: BROWN v. ARKANSAS CENTRAL POWER CO. (two cases).
• Court: Arkansas Supreme Court

294 S.W. 709

BROWN v. ARKANSAS CENTRAL POWER CO. (two cases).

(No. 18.)

Supreme Court of Arkansas.

May 23, 1927.

Appeal from Circuit Court, Pulaski County; Richard M. Mann, Judge.

Actions by Horace R. Brown and another against the Arkansas Central Power Company. From a judgment sustaining a motion to make the amended petition more definite and certain, treated as a demurrer, and dismissing the complaint, plaintiffs appeal. Reversed and remanded, with directions.

Chas. S. Harley and Robt. J. Brown, Jr., both of Little Rock, for appellants.

Elmer Schoggen and Rose, Hemingway, Cantrell & Loughborough, all of Little Rock, for appellee.

MEHAFFY, J.

The complaints in the two cases are substantially the same, and allege the ownership of property by plaintiffs, describing same, and allege that the defendant is a corporation operating an electric light system and street car system, and that it owns and operates a power plant for generating electricity, located in the adjoining block to, and east of, plaintiff's property, just across the street from same.

Continuing, plaintiff states:

"That, in the operation of defendant's said power plant, coal, and slack are burned for the purpose of generating steam, and in the burning of same there is thrown off, emitted, and permitted to escape from the smokestack or chimney of said power plant, smoke, soot, cinders, ashes, and other refuse, which is thrown, falls, drops, and is blown into and upon, and settles in and upon, plaintiff's said property hereinabove described, to her great injury, stopping her drains, causing her roofs, gutters, down spouts, walls, and cornices to rot, blackening and destroying the paint on said houses and on the roofs thereof, soiling and ruining the floors, walls, and wallpaper, paints, varnishes, and other interior finishes, soiling the clothes of the plaintiff and of her family, friends, and guests, killing shrubs, flowers, trees, and grass, making her housework heavier and more burdensome; it being impossible to keep her house and houses which she rents in a clean and neat condition, thereby destroying the comfort of plaintiff's home, and causing her and the members of her family great and unbearable personal annoyance, discomfort, and suffering.

"That at said power plant the defendant owns, maintains, and uses a traveling crane, which plaintiff is informed, believes, and therefore alleges, is used for the purpose of unloading coal, coal slack, and other fuel from railway cars. That in the operation of said crane there is caused a loud, grinding, whirring noise, caused by the grinding of the gears, so plaintiff is informed and therefore alleges, and this noise is loud, penetrating, and annoying, said crane being operated any and all hours of the day and night, said noise being so annoying, penetrating, and nerve-racking that plaintiff, the members of her family, her tenants, and families of said tenants, are unable to sleep, rest, or enjoy peace and quiet, and particularly the said crane when so operated prevents plaintiff from enjoying the peace, quiet, and pleasure of her home.

"That the defendant has acquired possession of, and is using and has been using for some time past, a lot directly across the street from plaintiff's property hereinabove described, and that on said lot it has piled a large number, and is continually piling and maintaining on said lot a large number, of telephone poles, piles, timber, lumber, and other forest products, all or most of same having been treated with creosote, and that from said creosote timbers there is thrown off an overpowering odor of creosote, to such extent that the pleasure and enjoyment of plaintiff's home and the pleasure and enjoyment of her tenants and their families is materially affected; her comfort, as well as that of the members of her family, her tenants and their families, being thereby destroyed, this odor being more marked during the summer, when it is desirable to use her porches and to keep the windows of her home and tenant houses opened.

"That the injuries and damages hereinabove alleged are not the result of the construction of defendant's power plant as an original wrong, but are the result of the manner of operation of said plant by said defendant as a continuing wrong; the injuries and damages being successive. That defendant can reasonably operate its said power plant without causing the injuries and damages hereinabove alleged. That the operation of defendant's said plant is such as to constitute a nuisance, specially injuring and damaging plaintiff as aforesaid.

"That, on account of the nuisances hereinabove described, she has had to reduce the rentals on her rental houses; has had to expend large sums continually in repairing same in excess of that which would be necessary on account of the ordinary wear of same. That, even though she has reduced the rentals on her said houses below what a reasonable rental for such house so situated would be, she has been unable to keep the same rented, although many expressed the desire to rent and occupy the houses, but refused to do so on account...