Gus Blass Dry Goods Co. v. Reinman

• Citation: 143 S.W. 1087,102 Ark. 287
• Parties: GUS BLASS DRY GOODS COMPANY v. REINMAN
• Decision Date: 12 February 1912
• Court: Arkansas Supreme Court

143 S.W. 1087

102 Ark. 287

GUS BLASS DRY GOODS COMPANY v. REINMAN

Supreme Court of Arkansas

February 12, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Judgment reversed, and cause remanded.

Charles Jacobson, for appellants.

1. A private corporation has the right to have a nuisance abated. Joyce on Nuisances, par. 442; 108 U.S. 317, 330.

2. Appellants can be joined as parties plaintiff. All are similarly injured at the same time and in the same way. Kirby's Digest, § 6005.

3. A nuisance may be both public and private. That which annoys the public generally or invades its rights, constitutes also a private nuisance where specific injury occurs. Joyce on Nuisances, par. 14; 32 L. R. A. (N. S.) 525; 1 Cal. 426; 40 Ark. 87.

4. It is not necessary to allege negligence. Joyce on Nuisances par. 18; 1 Cal. 426; 122 N.Y. 18; 18 Minn. 324; 63 N.Y. 568; 92 Ark. 542.

Watkins & Vinson, for appellees.

1. Livery stables are not nuisances perse. No carelessness nor negligence is alleged. 89 Ark. 175; 85 Id. 544; 93 Id. 362; 95 Id. 545; 108 U.S. 545.

2. The remedy is at law.

OPINION

FRAUENTHAL, J.

This is an action seeking to enjoin the defendants from maintaining a nuisance arising from the alleged wrongful management of a livery stable owned and conducted by them. The complaint contains substantially the following allegations: The plaintiffs are four domestic corporations occupying places of business upon Main Street, in the city of Little Rock; three of them are engaged in the retail dry goods business, and the other in the banking business. The defendants own and conduct a livery, sale and feed stable in a building which is located at the rear of the business houses occupied by plaintiffs, and separated therefrom by an alley twenty feet in width. In the conduct of their business, the plaintiffs employ a great many persons as clerks; a great many persons visit these stores for the purpose of shopping; and in the rear of the stores, and nearest to the defendant's stable, are located their offices where other employees and officials transact part of the companies' business. It is further alleged that the defendants "keep many horses, mules and other stock in their stable, also large quantities of hay, grain, and other highly inflammable material, and that said hay, grain and other inflammable material is stored in the rear end of their building bordering on said alley, and within about twenty feet of the rear end of the stores occupied by plaintiffs, and that by reason thereof plaintiffs' danger from fires is vastly increased and made more hazardous. That an offensive odor and stench from the animals and the droppings pour into their respective places of business and permeate the same, to the great annoyance and discomfort of the members composing said corporations who work therein, as also the employees who labor therein, and of the customers who come there for the purpose of buying goods and other wares, to such an extent as to render them uncomfortable, and at times unfit them for the proper discharge of their duties, and that said annoyance and discomfort is continuing and permanent, and has been continuous, and is greatly injurious to plaintiffs' businesses, it causing an annoyance and discomfort to those desiring to purchase goods, and those waiting upon them as employees, and rendering said buildings unfitted for the purposes for which they are conducted by the plaintiffs." It is also alleged that the plaintiffs have no adequate remedy at law.

The defendants filed a demurrer to the complaint based upon the grounds: (1) that there was a defect in the parties plaintiff; (2) that plaintiffs, who are corporate and artificial bodies, could not maintain an action seeking injunctive relief from the injuries claimed to arise from the alleged nuisance; (3) because plaintiffs showed no special injury sustained by them different from that sustained by the public generally by reason of the alleged nuisance; and (4) because the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, as it is stated in argument, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it failed to allege that the defendants were guilty of negligence in the manner in which they managed and conducted the livery stable. Plaintiffs refused to plead further, and thereupon the complaint was dismissed.

The action instituted by the plaintiffs is based upon their right to be protected in the use and enjoyment of their property, which, it is in effect alleged, is impaired and partially destroyed by the alleged nuisance maintained by the defendants upon adjoining property. The use and enjoyment of property is the chief element which gives to it value; and the deprivation or impairment of such use and enjoyment is in effect a destruction of the property itself. Every owner of property, whether in fee or for years, has the right to a remedy for the interference with or the deprivation of its use and enjoyment, either by the recovery of damages when that affords adequate relief, or by the restraining power of the court when damages are irreparable. The use and enjoyment of one's property may be lessened or destroyed by injuries arising from a nuisance. Where the rights enjoyed by the citizens as a part of the public are affected by the nuisance, the authority of the State or municipality may be invoked by its representative officers, either to abate the nuisance or to punish those maintaining it. Where, however, the acts complained of constitute a private nuisance, the individual who sustains special injuries arising therefrom may obtain relief, either by the recovery of damages or by injunction, according to the degree of the injury. Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, whereby it works a special injury to another in the use and enjoyment of his property, will constitute a private nuisance. The same wrongful act and wrongful use of one's property may at once constitute both a public and private nuisance. Where a special injury, differing from that sustained by the public generally, is inflicted by such nuisance upon the individual, then the wrongful act complained of constitutes a private nuisance for which the individual is entitled to a remedy upon a suit brought in his own name. Every one has the right to the reasonable use and employment of his own property; but such use and employment of it is not reasonable if it deprives the adjoining owner of the lawful use and enjoyment of his property. If one uses and employs his own property in such an unwarrantable and unreasonable manner as to annoy, injure or endanger the comfort, repose, health or safety of another in the use of his property, then he creates a nuisance, for which the court will grant relief. A livery stable in a town or city is not necessarily a nuisance; or, as it is often expressed, it is not a nuisance per se. It may be, and ordinarily is, both harmless and useful. But if it is conducted or kept or used in an improper manner, if by the unwarrantable and unreasonable use thereof it destroys the comfort of the adjoining owner so as to palpably and sensibly diminish or destroy the lawful use and enjoyment of his property, then the livery stable becomes a nuisance. Durfey v. Thalheimer 85 Ark. 544, 109 S.W. 519; Dargan v. Waddill, 31 N.C. 244, 9 Ired. 244; Kirkman v. Handy, 30 Tenn. 406; Shiras v. Olinger, 50 Iowa 571; Keiser v. Lovett, 85 Ind. 240; St. James' Church v. Arrington, 36 Ala. 546; Phillips v. Denver, 19 Colo. 179, 34 P. 902.

There are various trades and occupations which are useful and even necessary to the existence and growth of towns and cities, but which may be so conducted as to render the use and enjoyment of adjacent property uncomfortable and intolerable, by...