Cooper v. Whissen

• Decision Date: 06 June 1910
• Citation: 130 S.W. 703
• Parties: COOPER v. WHISSEN et al.
• Court: Arkansas Supreme Court

Page 703

130 S.W. 703

COOPER v. WHISSEN et al.

Supreme Court of Arkansas.

June 6, 1910.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by A. A. Whisson and another against Warren Cooper. From a decree for plaintiffs, defendant appeals. Reversed, and complaint dismissed.

This suit was brought by appellees against appellant to enjoin him from erecting buildings for, and from maintaining, a wagon yard in what is alleged as a residence district of the city of Little Rock, Ark. After showing the location of their residences and the value thereof, appellees allege "that Cooper leased for 10 years lots 4, 5, and 6, block 148, Little Rock, being northeast corner of Rock and Fourth streets, for a flat-roof wood structure for a wagon yard, where farmers and peddlers shelter themselves and teams with wagons usually loaded with vegetables, chickens, and other farm produce; that many vegetables and eggs decay in transit, and chickens will die and are left in the yard; that said yard will stable about 100 mules and horses; that two large rooms will be built for himself and patrons, who will eat and sleep there and cast their leavings in the yard; that droppings of animals and decayed matter will create a stench and draw flies and mosquitoes and cause disease, depriving them of the comforts of home, creating a nuisance, and depreciating their property; that the frame had been erected, covering 150 feet on Fourth and 192 feet on Rock, with four rooms on Rock to be used by both white and colored to sleep in, with a number of small sleeping rooms and two large lobby rooms, with a chimney between for cooking on the north side of said lots; that said lots are without sewer connections, and said frame structure will contain large quantities of feed stuff, dangerous on account of fire; that said fractional lot 3 is within the fire limits, and no proper permit has been obtained to erect said building, and, same being of wood, does not comply with the ordinance." There was a prayer for injunction.

Cooper answered, denying the allegations of the complaint and alleging that said yard will be across a street 60 feet wide from Whissen and across another street 60 feet wide from Comer, and will be in a business part of the city, where the business houses are fast encroaching upon what few residences are left, which are largely boarding houses and flats; that he is erecting the most approved and up to date building for said yard, and when completed will be run in a cleanly and first-class condition, and not be a nuisance to any one; that he has a permit from the city to erect same; that his building only covers 183 feet on Rock; that he obtained a permit to erect it on lots 4, 5, and 6, but by mistake commenced to erect it on fractional lot 3, which is within the fire limits; that he is removing his improvements therefrom, and will erect nothing thereon unless be gets a proper permit; that the rooms on Rock will be rented out for stores, and not used for sleeping rooms; that he will erect rooms on said lot 3 if he gets a permit, but will not use them for the purposes alleged.

After hearing the evidence the court rendered the following finding and decree: "That the building proposed to be erected in the manner shown by the plans and exhibited by the defendant and the testimony in relation thereto will constitute a nuisance, and will render the property of the plaintiff uninhabitable as residences. It is therefore considered, ordered, adjudged, and decreed that the defendant, Warren Cooper, his agents, employés, and all persons acting under him, be, and are hereby, perpetually enjoined from erecting on block 148, in the city of Little Rock, Ark., a...