East Arkansas Construction Co. v. James

• Decision Date: 17 February 1947
• Docket Number: 4-8065
• Citation: 199 S.W.2d 589,211 Ark. 154
• Parties: East Arkansas Construction Co. v. James
• Court: Arkansas Supreme Court

199 S.W.2d 589

211 Ark. 154

East Arkansas Construction Co. v. James

No. 4-8065

Supreme Court of Arkansas

February 17, 1947

Appeal from Craighead Chancery Court, Western District; Francis Cherry, Chancellor.

Affirmed.

Adams & Willemin, for appellant.

Ivie C. Spencer, for appellees.

OPINION

Griffin Smith, Chief Justice.

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 evidence 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: "I would say the territory has always been industrial property. The natural boundary [in part] is Old Highway No. 1, known as the 'Aggie' Road. The Barton Lumber & Brick Company [on the north] is the old Greensboro Road. It extends about 2,000 feet beyond what is known as New Highway No. 1. In the past this whole area has been [industrial or non-residential] property. Recently a new shoe factory, Johnson's Welding Shop, and a grocery store have been put up north of New Highway No. 1 and a little west of this location. The shoe factory is east of 'the line of the crusher,' and northwest of the brick company. The welding shop is west of the shoe factory. South of the crusher the Snyder Drug Company has erected a concrete block warehouse 60 x 150 in size. East of the warehouse, along the old highway, the property is vacant except 'for a space and a frontage' used by Frape Truck Line. For a while the truck company maintained its shops there, with storage for vehicles. The old J., L. C. & E. Ry. has a spur track, and there are other such extensions."

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 noise, smoke, dust, and movements incidental to the character of industry then being operated would be the approximate measure of molestation. If O'Neil, who leased a right of way to appellant, or James, who bought of O'Neil and accepted $ 100 from appellant for right-of-way facilities, were the only injured parties, we would unhesitatingly say they are without equitable rights.

The rock crusher was not built until June, 1945. Extent to which it was operated during the first few months following installation is not shown. But it is definitely disclosed that all-night work did not begin until two or three weeks...