City of Fort Smith v. Bonner

• Decision Date: 12 July 1937
• Docket Number: 4-4719
• Citation: 107 S.W.2d 539,194 Ark. 466
• Parties: CITY OF FORT SMITH v. BONNER
• Court: Arkansas Supreme Court

107 S.W.2d 539

194 Ark. 466

CITY OF FORT SMITH v. BONNER

4-4719

Supreme Court of Arkansas

July 12, 1937

Appeal from Sebastian Chancery Court, Fort Smith District; C. M Wofford, Chancellor; affirmed.

Affirmed.

Fadjo Cravens and Jos. R. Brown, for appellant.

Hardin & Barton and Daily & Woods, for appellees.

OPINION

GRIFFIN SMITH, C. J.

This appeal is from the action of the chancery court in denying the prayer of a petition by appellant, City of Fort Smith that the defendant-appellee be enjoined from maintaining, in an addition to the city, a business designated "horse mule and live stock barns and enclosures."

It is alleged that the defendant"accumulated in these barns and enclosures large numbers of stock, creating offensive and nauseating odors that taint the atmosphere for many blocks; that said stock attracts large swarms of flies and other insects that harass the neighborhood; that said animals annoy residents by braying and making other disturbing noises day and night; that auctions held at short regular intervals attract large numbers of buyers, who congregate at the barns, blocking streets with their parked trucks and other vehicles, and that the conduct of said auctions is loud and disturbing and lasts throughout the day and much of the night."

The answer was a denial of the essential parts of the complaint, coupled with an allegation that appellee acquired the property and had operated the business for eleven years; that he had spent large sums of money making improvements; that appellant had issued a permit, authorizing the business to be conducted, and was estopped to maintain the action.

The appellee, First National Bank, intervened, alleging that it had a mortgage on the property, and was therefore interested in the suit.

Appellees' brief contains the following statement of facts: "There is a suburban railroad which circles the city of Fort Smith, built many years ago for the express purpose of encouraging the building of industrial enterprises around the city and along this railroad.Many years ago a lumber yard was built on this suburban railroad at the site now occupied by the Bonner Yards and Barn.This enterprise was discontinued and the buildings remained unused for a number of years.Some twelve years ago, Joe Bonner bought the property, and procured a permit from the city to establish and maintain the same as a Live Stock Commission Barn.He was permitted by the city to build a side track from the main railroad line to the gates of his barn as a convenience and facility.

"He operated this barn unmolested, improving and enlarging the same from time to time until 1936, when this suit was started.As late as May 1, 1936, he was granted permission from the city to change and remodel his barns and to install scales for the weighing of the live stock.At that time he expended several hundred dollars on these improvements.Two or three years ago he made improvements amounting to about $ 3,500.

"When he took over the place and established his business there, there were but few residences to the east of him, but in the rush times of the late twenties, and up to about 1931 and 1932, a great many houses were built to the east of him.All of the complaining witnesses, except possibly one or two, moved into the community during the time this barn was in operation and flourishing.These complaining residents live to the east and southeast for the most part.Grand Avenue runs east and west and to the immediate south of these barns, that is, the barns are located approximately one block north of Grand, there being no buildings, except a few little business houses, between it and Grand.Immediately west of the barns is a creek or branch along the banks of which the suburban railroad runs.There are no buildings near the suburban and east of it for many blocks southward, and none for several blocks northward except some negro shacks.On Grand Avenue west, there are some residences and some little business houses.Immediately in front of this barn there is a whole block vacant except for a house on the southeast corner of the block.To the east and southeast along Grand Avenue, several blocks from the Bonner barns, are the comparatively new additions of Clifton Court, East End Place, and Hawthorne Place."

Appellant's summary contains the following declaration:

"The barn is located in a developed residential section as shown by the record, and defendant Bonner, just before the suit was brought, told newspaper representatives he was building eighty new stock pens under cover, and would sell cattle and hogs during the summer season.He also informed the paper he was installing five new chutes and expected commission firm buyers from Joplin, Springfield and Kansas City.He contemplated 'big sales' of hogs, cattle, horses, mules, etc.He intended to get as much stock as he could to sell at his barn.

"All witnesses, including defendant Bonner, testified that in operating the business, several hundred head of stock were collected in the barn and adjacent pens."

R. B Odom, a witness for appellant, testified that his home was about a block from the Bonner barn; that the barn is "a big old dilapidated, ramshackle building, a block long and half a block wide, with adjoining pens.In the pens are kept hogs, cows, horses and mules.East of the barn are homes, extending thirteen blocks to the county farm, and homes are north of the barn, extending about eight or ten blocks.There are several hundred homes in the neighborhood surrounding the barn.The barn is an eye-sore and odors emanating from it are very offensive, especially in summer.After a rain it is almost unbearable.The barn is a breeding place for rats, mice, flies and insects of all kinds that infest the homes.Jackasses bray, horses neigh,...