Durfey v. Thalheimer

• Decision Date: 09 March 1908
• Citation: 109 S.W. 519,85 Ark. 544
• Parties: DURFEY v. THALHEIMER
• Court: Arkansas Supreme Court

109 S.W. 519

85 Ark. 544

DURFEY v. THALHEIMER

Supreme Court of Arkansas

March 9, 1908

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

Decree reversed and cause remanded.

Geo. W Williams, for appellants.

It is not contended that a livery stable is a nuisance per se; but "in action for injuries resulting from a livery stable as a nuisance, it is sufficient to establish the injury either from offensive smells, noise, or the unwarrantable collection of flies; and it is no defense that the stable is well and properly built, etc. If, in point of fact, injury results to others that is clearly traceable to the stables as the promoting cause, it is a nuisance." Wood on Nuisance, §§ 594-5. It is not necessary that the noisome smells should be hurtful or unwholesome; it is sufficient if they are so offensive, or produce such annoyance, inconvenience or discomfort as to impair the comfortable enjoyment of property by persons of ordinary sensibilities. Id. § 501. A smell that is simply disagreeable to ordinary persons is such a physical annoyance as makes the use of property producing it a nuisance, whether it is hurtful in its effect or not. Producing no tangible injury to property, such a nuisance affects its value by rendering its use disagreeable or uncomfortable, and the recovery is necessarily confined to such sum as, in view of the character of the nuisance and the discomfort produced, will compensate the party for the depreciation in value and the injury to its enjoyment. Id. § 502. It is immaterial whether the proprietor of the business or trade was guilty of negligence nor is it any defense that the business could not be carried on without producing such results. Joyce on Nuisances, § 157. The business may be lawful, and not injurious to health, and still be a nuisance, and the question of care in its operation is immaterial. Id. §§ 161, 166, 167. It is no defense that it is properly built and kept, nor that its location is desirable or convenient, nor that it is equipped with modem improvements for drainage and ventilation. Id. § 201-2, 203. See also 50 Ia. 571; 54 Am. Dec. 347; 49 Am. Dec. 241; 67 Am. Dec. 665; 20 N.J.Eq. 201; 86 Md. 562; 42 S.C. 402; 5 Am. Law Reg. 104; 54 S.W. 1094; 22 Tex. Civ. App. 419; 2 Can. S. C. 20; 5 N.Y.S. 882; 134 Ill. 281; 70 Ark. 12; 108 U.S. 317; 137 U.S. 562; 135 U.S. 432.

This was Mrs. Durfey's home, and she also has a dower interest therein. It is not contended that her testimony should be considered for her husband, or his for her, but that she had a right to sue for injury to her.

An action for damages caused by a nuisance may be properly joined with a demand for injunction, and it is improper to compel the plaintiff to elect to sue for one only--the two being one cause of action with two remedies. 22 S.C. 476; 53 Am. Rep. 730; 56 Barb. (N. Y.) 480.

The court can not anticipate future damages as to a continuing nuisance, but can only find for damages to the time of trial. Nor will the payment to claimant of said damages bar future action. 101 N.Y. 98; 53 Am. Rep. 123, note; 52 Ark. 240; 56 Ark. 616; 72 Ark. 129.

Charles Jacobson, for appellees.

A livery stable is not per sea nuisance, nor prima facie so. In an action to abate a use of property for such purpose, the burden is on the plaintiff to show that it is a nuisance. Joyce on Nuisances, § 200; 87 Md. 68. In order to create a nuisance from the use of property, the use must be such as to work a tangible injury to the person or property of another, or to render the enjoyment of property essentially uncomfortable. It is not enough that it diminishes the value of surrounding property. Wood on Nuisances (3 Ed.), 4; 80 N.Y. 579; 20 R. I. 165; 36 L. R. A. 716; 16 Am. & Eng. Enc. of Law (1 Ed.), 923. See also 24 Nev. 454; 7 Mo.App. 37; 8 Cent. Law Jour. 70-1; 19 N.J.Eq. 294; 50 Ia. 571. Odors which are unpleasant but not physically discomforting are not a nuisance. 24 Fla. 103; 8 R. I. 246; 61 Wis. 500; 20 N.J.Eq. 201.

In all cases such as this, before recovery can be had, legal injuries and resulting damages must be shown--a concurrence of wrong and damages. 73 Ind. 284, 294. If, while one is exercising his natural right to the use and enjoyment of his own property, without negligence or malice on his part, unavoidable loss occurs to his neighbor, this is damnum absque injuria. The rightful use of one's own property may cause damage to another without legal wrong. 113 Pa. 136; 122 N.Y. 125; 11 Cushing, 221-6; 26 Me. 384; 82 Pa. 787; 145 Pa. 342. The only question in the case, with reference to the stable being a nuisance and the right to recover damages, is whether the stable was maintained in such a manner as to constitute a nuisance. 104 Tenn. 583. And the clear preponderance of the evidence sustains the finding of the chancellor that the property is not a nuisance, and would have justified a finding that appellant's property was not depreciated in value. Mrs. Durfey's testimony was incompetent, and properly stricken out. Kirby's Digest, § 6005; 77 Ark. 431; 54 Ark. 159; 65 Ark. 508. The wife must bring a separate suit for her personal interest, and have an interest in the property. Kirby's Digest, § 6017; 99 N.W. 154; 68 Ark. 180. Where suit is brought by husband and wife, her interest in the subject-matter of the suit must be averred or shown in the declaration. 26 Cent. Digest, 2487; 24 Conn. 165; 45 N.H. 67; 54 Vt. 486; 25 Ark. 63; 63 Mo. 131; 55 Mo. 456. See also 14 Tex. Civ. App. 250. The chancellor erred in holding that mere proximity alone, causing depreciation, was sufficient on which to base a recovery, in the absence of allegation and proof that the defendants use of the property was unlawful or attended with negligence or malice. Cases cited above.

BATTLE, J.; HART, J., being disqualified, did not participate.

OPINION

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, Arkansas, 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 he 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' bed rooms and within a few feet; that odors from the animals and their droppings pour into their bed rooms, 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 can not 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 fifty 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, Arkansas. Knows defendants' stable at the corner of Third and Spring streets. Could not say that...