Bryson v. Ellsworth

• Decision Date: 17 March 1947
• Docket Number: 4-8108
• Citation: 200 S.W.2d 504,211 Ark. 313
• Parties: Bryson v. Ellsworth
• Court: Arkansas Supreme Court

200 S.W.2d 504

211 Ark. 313

Bryson v. Ellsworth

No. 4-8108

Supreme Court of Arkansas

March 17, 1947

Appeal from Nevada Chancery Court; A. P. Steel, Chancellor.

Affirmed.

W S. Atkins, for appellant.

McRae & Tompkins, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellees, 19 residents of the City of Prescott Arkansas, instituted this suit in chancery court to abate a nuisance which they alleged appellants were maintaining in the use of a 13-acre tract of land situated directly across the street from, and in front of, the homes of appellees.Appellants acquired the 13-acre tract in 1941 and constructed a large barn on the lot which they inclosed with a wire fence.The barn was used by appellants for storage of feed crops gathered from their several farms.Appellants live several miles from the tract which was left in charge of a tenant, and was used as a feeding lot and pasture for cattle kept within the inclosure.

The complaint of appellees alleged the manner of operation and use of the barn and lot by appellants in detail, and charged that same constituted an intolerable nuisance.The prayer of the complaint was that appellants be permanently restrained from keeping cattle upon said lands.In their answer appellants admitted that they kept cattle in the inclosure but denied the other allegations of the complaint.

The cause was heard on April 15, 1946, and taken under advisement until April 18, 1946, when the chancellor rendered a written opinion which was incorporated in the decree, and contains the following findings:

"The plaintiffs are people who reside across the street from this pasture and the testimony discloses that there is an average of about sixty head of cattle kept on the premises and among the cattle are two bulls.It is shown that for a long period of time water was permitted to run constantly from a hydrant across the street from some of the plaintiffs and as a result, it became a loblolly and was infested by mosquitoes and a large number of flies.It was the general congregating place of the cattle and the droppings, together with the mud, created an odor that was very offensive to all of the plaintiffs.The testimony also discloses that breeding was carried on in the pasture and that a number of calves were born in the open in front of the residences of the plaintiffs; also that joint efforts had been made by the people asking to abate the nuisance, but all to no avail, and as a result, this action was brought.

"The court further finds that the plaintiffs have fully sustained the allegations of their complaint and that the use of the premises for such purposes not only makes the conditions surrounding the place almost unbearable, but endangers the lives and health of the plaintiffs and that the defendant should be enjoined from further use of said property for the purposes aforesaid.

"It is therefore by the court considered, ordered and adjudged that the defendants, and each of them, be and they are hereby perpetually enjoined and restrained from:

"(a) Keeping or maintaining more than 10 cattle at any one time upon said lands, the evidence disclosing that this is all the stock the pasture will support.

"(b) Keeping or maintaining a bull or bulls in said pasture at any time when cows are therein.

"(c) Permitting cattle to breed upon said lands or calves to be born thereon.

"(d) Permitting water to overflow upon said lands and cattle to congregate therein and to create a loblolly or muddy area.

"(e) Permitting the waste and droppings from such cattle as are maintained on said lands to accumulate in such manner as to become a breeding place for flies or mosquitoes or to create an offensive odor . . ."

Appellants concede that appellees were entitled to a decree in their favor embodying paragraphs (b) to (e), inclusive, of the above decree and only appeal from that part of the decree embraced in paragraph (a), which limits to 10 the number of cattle they are permitted to keep and maintain within the inclosure.

It is the contention of appellants that, since the keeping of cattle in an inclosure is not a nuisance per se,the court was without power to enjoin appellants from keeping more than 10 cattle in their lot and only had the power generally to restrain appellants from maintaining cattle on the lands in such a way as to constitute a nuisance.It is true that the keeping of cattle is not a nuisance per se, but it may, nevertheless, become a nuisance in fact, depending upon the proof.

The distinction between the two types of nuisances is stated in 39 Am. Jur., Nuisances, § 11, p. 291, as follows "The difference between a nuisance per se and a nuisance in fact lies in the proof, not in the remedy.In the case of a nuisance per se, the thing becomes a nuisance as a matter of law.Its existence need only be proved in any locality, and the right to relief is established by averment and proof of the mere act.But whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances.In such cases, proof of the act and its consequences is necessary.The act or thing complained of must be shown by evidence to be a nuisance under the law, and whether it is or is not a nuisance is generally a question of fact."In Lonoke v. Chicago, R. I. & P. Ry. Co.,92 Ark. 546, 123 S.W. 395, this court said: "The act done or the structure erected may be a nuisance per se, or the act or use of the property may become a nuisance by reason of the circumstances or location or surroundings.In the one case the thing becomes a...