Gaines v. Waters

• Decision Date: 08 January 1898
• Citation: 44 S.W. 353
• Parties: GAINES et al. v. WATERS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 353

44 S.W. 353

GAINES et al. v. WATERS et al.¹

Supreme Court of Arkansas.

January 8, 1898.

Appeal from chancery court, Garland county; Leland Leatherman, Chancellor.

Action by W. H. Gaines and another to enjoin W. W. Waters, mayor, and others, from tearing down a building condemned as a nuisance. From a judgment for defendants, plaintiffs appeal. Affirmed.

Wood & Henderson, for appellants. Greaves & Martin, for appellees.

RIDDICK, J.

This is an action brought by appellants to enjoin W. W. Waters, mayor, and T. J. Laughlin, chief of police, of Hot Springs, and other parties, from tearing down and removing a certain building in said city owned by appellants. The defendants, for answer, stated that they were acting under the orders of the board of health of Hot Springs, which had declared said house to be a nuisance, dangerous to the health of the city, and had ordered it to be removed. It was also alleged that the house was, in fact, a nuisance; that it was in a dilapidated, decayed, and filthy condition; that during a recent epidemic of smallpox many cases of such malady had developed and existed among the occupants of said house, and that by reason of the condition of said house it could not be thoroughly disinfected, and was a source of constant danger to the inhabitants of the city, and that its removal was therefore necessary. The case was heard in part upon evidence taken orally before the court. After a decree against them, the appellants were allowed 60 days in which to file their bill of exceptions showing such evidence, but failed to do so within the time allowed, and we must therefore presume that the findings of fact made by the chancellor were based upon competent and sufficient evidence. White v. Smith, 63 Ark. 513, 39 S. W. 555.

Now, the chancellor found from the evidence before him that the city council of Hot Springs had established a board of health for said city, and invested it with power to abate nuisances dangerous to the public health, and that the house of appellants was a nuisance of that kind; further, that it was necessary to remove the house to abate the nuisance, and that for this reason the board of health of the city had ordered it to be removed. These findings of fact being taken as correct, the only question left for us to decide is whether the city council could confer upon the board of health of the city power to order the abatement of a nuisance dangerous to the public health. Our statute provides that municipal corporations "shall have power to prevent injury or annoyances within the limits of the corporation from anything dangerous, offensive, or unhealthy, and to cause any nuisance to be abated within the jurisdiction...