East Arkansas Const. Co. v. James, 4-8065.
Citation | 199 S.W.2d 589 |
Decision Date | 17 February 1947 |
Docket Number | No. 4-8065.,4-8065. |
Parties | EAST ARKANSAS CONST. CO. v. JAMES et al. |
Court | Supreme Court of Arkansas |
Adams & Willemin, of Jonesboro, for appellant.
Ivie C. Spencer, of Jonesboro, for appellees.
East Arkansas Construction Company was enjoined from operating a rock crusher between seven o'clock p. m. and seven a. m. The restraining order was issued August 23, 1946, effective August 26th. Upon showing that the Company, prior to information that legal steps would be taken against it, had contracted with State Highway Department, and that definite commitments for deliveries not later than October 1 were outstanding, this Court permitted continuation of 24-hour milling until October 1st. This was done after a temporary supersedeas had been executed August 31st by an individual Judge. When on September 23d the matter came before the entire Court, issues were briefly stated and the Company agreed (respondent acquiescing) that night work would be discontinued October 1st. Appeal is on the merits. Contention of the Company is that a preponderance of testimony shows (a) that the crusher is situated in an industrial area outside the corporate limits of Jonesboro, but adjoining it; (b) that T. D. James is estopped from maintaining the suit and Harry O'Neil in effect consented to activities; and, (c) other plaintiffs (appellees here) have not met the burden assumed in asserting that night operation of the crusher is attended by objectionable incidents justifying a court of equity in restricting use to the period allowed by the injunction.1
There is testimony that the area surrounding the crusher has always been industrial property and it is not denied that the district is beyond Jonesboro's city limits. On the other hand, witnesses owning homes, or residing near the crusher, contend that the distinction between "industrial," and "residential," is not defined by use to such an extent that industrial activities of an unusually objectionable nature should be permitted to destroy normal home comforts and the ordinary utilitarian purposes for which such property is designed.
E. A. Stuck, a witness for the defendants,2 testified that the crusher and appurtenances were located on property once owned by Barton Lumber & Brick Company and lies west of the Jonesboro Brick Company. The crusher is on land formerly occupied by a brick plant. When asked regarding general nature of the entire area with reference to residence property, Mr. Stuck said: .
Testimony as a whole sustains the Chancellor's finding (though not expressed affirmatively in the decree) that while the area had gradually acquired characteristics of an industrial nature, yet along with this development homes were erected without reason for apprehension that extraordinary and continuous inconveniences would be experienced, but to the contrary that the ordinary...
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