Durfey v. Thalheimer

• Decision Date: 09 March 1908
• Parties: DURFEY v. THALHEIMER et al.
• Court: Arkansas Supreme Court

109 S.W. 519

DURFEY v. THALHEIMER et al.

Supreme Court of Arkansas.

March 9, 1908.

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor.

Suit by Frank Durfey against Benjamin Thalheimer and another. From a judgment for plaintiff for less than the relief demanded, both parties appeal. Reversed and remanded, with directions.

Geo. W. Williams, for appellants. Chas. Jacobson, for appellee.

BATTLE, J.

Frank Durfey commenced suit against Benjamin and Sidney Thalheimer in the Pulaski chancery court, alleging in his complaint that he was the owner of a certain house in a residential part of Little Rock, Ark., which had been occupied by himself and his ancestors for many years; that defendants had purchased certain adjoining lots, and intended to build on the same a brick livery stable, and to keep therein mules, horses, and other stock and all kinds of vehicles, and to operate it with a large number of servants, at all times, in the day and night. If built and operated the stench from the animals and their droppings, danger from fire, swarms of flies, and the noises during the day and night would render it an intolerable nuisance, and greatly depreciate plaintiff's property, and inflict upon him an irreparable injury, and asked that they be restrained from erecting the stable.

The defendants answered, and denied the allegations in the complaint, and that the lots mentioned in the complaint were in a residential part of Little Rock, and alleged that they had obtained a permit from the city to build the stable.

Thereafter plaintiff and his wife, whom he had married since the institution of this suit, filed a supplemental complaint, in which they alleged, in addition to what was already alleged in the complaint, that the defendants had erected on the lots purchased by them a two-story building, and were using it as a livery and sale stable, and kept many horses, mules, and other stock and all kinds of vehicles, and have hired a large number of servants, mostly negroes, who are boisterous, blasphemous, and offensive; that they keep on hand hay, grain, and other highly inflammable material; that they stable their animals in the second story of the building, where windows open opposite to plaintiffs' bedrooms, and within a few feet; that odors from the animals and their droppings pour into their bedrooms and make them uninhabitable; "that the negroes are so placed that they have sight into the interior of their private apartments, and could, with small efforts, pass into them at any hour of the day or night; that plaintiffs and their children are kept in fear and dread of the negroes; that defendants openly violate the Sabbath by operating the stable on that day, thereby disturbing the quiet and rest of plaintiffs, who are members of the Christian Church; that their property has greatly depreciated, and has been rendered unfit for residence, and has been practically confiscated, as they cannot use or sell it," and the health of Mrs. Durfey has been impaired; and they asked that defendants be perpetually enjoined and restrained from using the building as a stable.

The defendants answered, and denied the allegations in the supplemental complaint, and alleged that they obtained a permit from the city to build the stable, and that it had been properly built and kept.

Evidence was adduced by plaintiffs tending to prove that they owned and occupied as a residence the lots and house thereon claimed by them in their complaint, and defendants had erected a brick livery stable on lots adjoining, as stated in the complaint, which rendered the house of plaintiffs undesirable as a boarding house or residence.

H. C. McCain testified to the following effect: "Has at many times during the night, at different hours, heard negroes in front of the stable talking and laughing. The odors coming from the stable are very offensive, particularly during the very hot days, not so bad as other stables, but if a breeze is blowing can smell it."

Mrs. Wilson: "She lives in 50 feet of stable, on south side of plaintiffs. The odor, noise of horses, and ringing of bells wake her up often at different times during the night."

Mrs. Banister: "Resides at 313 Spring street, Little Rock, Ark. Knows defendants' stable at the corner of Third and Spring streets. Could not say that the noise of the stable disturbed her, but have heard noise and bells, and smelt odors from there. The noises did not awaken her, as she was a sound sleeper. Have heard horses and mules in the stable squealing and kicking. When it is dry could not smell odors, but can when it is damp, or the wind is blowing toward her."

D. B. Neal: "Is a physician. Visited Mrs. Durfey professionally. The livery stable affected her health. While visiting her noticed the proximity of the stable and the noises from the horses and negroes, but did not notice any obnoxious odors."

Tillar: "Thinks property of plaintiffs greatly damaged in value on account of stable."

Greenwood: "Occupied a room at 313 Spring street. The odors from the stable occasionally were not very pleasant."

The plaintiffs sustained the allegations in their complaint by their testimony.

Dr. G. M. D. Cantrell: "Practicing physician 31 years. Knows the situation of the stable relative to residence. It is close. Would say as a physician that the unavoidable effect upon a family living in the house of the livery stable, with a number of horses and mules and attendants, upon the health, quietude, and enjoyment of the family, from the noise, dust, odor, and disturbance, would be about as near a total destruction of the property (the residence near the livery stable) as he knew or could think of. If his, he would do anything to get rid of it. Would give it away — anything to get away from there."

Carter Johnson, Morehead Wright, E. J. Bodeman, B. Bodeman, R. Colburn Butler, and J. E. Turpin, real estate agents, testified that defendants' stable had not affected the market value of plaintiffs' residence.

Dr. Anderson Watkins testified: "Is city physician of the city of Little Rock, and has been since 1898. Is acquainted with appellants' stable, and it has an admirable arrangement. The floors, sewerage, and method of cleaning seems to be about as good as could be contrived. The stable is kept in a sanitary condition, and nothing could be done by the owners to make it more so."

A. S. Reaves testified: "Boarded three years at Mrs. Wilson's adjoining appellees' residence. Prior to that time boarded in appellees' residence. While at Mrs. Wilson's witness never detected any disagreeable odors from appellants' stable. Don't know of any boarder leaving Mrs. Wilson's on account of the stable. Mrs. Wilson has now more boarders than she ever had."

Charles M. Simon: "Is acquainted with Thalheimers' stable, and the stable is located in the livery stable district. Witness has a stable two blocks from Thalheimers', and has recently erected a building on Third and Louisiana streets 75 feet from his stable, 8 feet from Kraft's stable, and the width of a street from Reinman's and Ehrman's stables; said building to be used as flats. Is in use now for the same, and wholly occupied. That the proximity of said stable has not impaired the use of said building for flats, nor its rental value. Thalheimers' stable is the cleanest stable in Little Rock, except Kraft's, and is equal to that in cleanliness, and Thalheimer could do nothing to make his stable more sanitary."

Asbury Winder testified: "That he occupies a portion of Thalheimers' stable; that is, 50 feet on Third street and 90 feet upstairs for a livery and boarding stable. He feeds at 5 and 11 a. m., and 6 p. m. Takes about half an hour to feed. There are only two people in the stable after 8 p. m. They all leave some time before 8. The stable is swept several times a day, and the manure is taken out every morning. The bell which they use is so weak that it can hardly be heard on the sidewalk, as was shown by a test which was made. Witness is in the stable each day from 7 a. m. until 10 or 10:30 p. m., and there is absolutely no profanity or loud noises made either by himself or his employés. It is impossible to see out of the back windows into appellees' residence, because the windows are sealed. The floors downstairs are made of concrete. Upstairs they are as follows: The first floor is a two-inch floor with two-ply of tar poured upon that; then an inch tongue and groove floor; then tar on top of that; then a two-inch floor on top of that, making the entire floor five inches in thickness. No smoking whatever is allowed. There are no odors, as the stable is cleaned every day. I never saw a stable that was so constructed and complete as this in any city. Witness has been in the livery business 18 years. The bell is a four-inch gong, and is used in the front part of the stable. When the horses are fed upstairs, it cannot be heard downstairs."

Tom Kinley testified: "Is night watchman at Winder's stable, and works from 8 p. m. to 8 a. m. This is in appellants' property. There are no noises in the stable at night, and very little at feeding time. There is no profanity or singing. There are...