Jordan v. Luippold

• Decision Date: 29 April 1941
• Docket Number: 29704.
• Citation: 114 P.2d 917,189 Okla. 189,1941 OK 143
• Parties: JORDAN v. LUIPPOLD et al.
• Court: Oklahoma Supreme Court

114 P.2d 917

189 Okla. 189, 1941 OK 143

JORDAN v. LUIPPOLD et al.

No. 29704.

Supreme Court of Oklahoma

April 29, 1941

Rehearing Denied July 1, 1941.

Syllabus by the Court.

1. Where the evidence shows that a lawful business is being conducted in such a manner as to constitute a private and public nuisance, causing substantial injury to the comfort health, or property of adjoining property owners, a court is authorized in enjoining and abating such nuisance. And where it clearly appears that such business cannot be conducted in any manner at the place where situated without constituting a substantial injury to the adjoining property owners and others in the neighborhood, the injunction should absolutely prohibit the operation of such business in that location.

2. Where the prosecution of a business, of itself lawful, in or adjacent to a residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business, in such locality, becomes a nuisance and may be enjoined.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Action by J. H. Luippold and others against S. N. Jordan, to abate a nuisance. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Guy L Andrews, of McAlester, for plaintiff in error.

W. A Lackey and W. J. Arnote, both of McAlester, for defendants in error.

CORN Vice Chief Justice.

J. H. Luippold and others brought an action in the district court of Pittsburg county against S. N. Jordan to abate a nuisance and for a temporary restraining order restraining and enjoining the defendant from constructing additional improvements in connection with his junk yard in McAlester pending final disposition of the case. The restraining order was granted, and upon trial of the case judgment was rendered declaring the defendant's junk business at its present location a nuisance and abating the same by a permanent injunction. From said judgment of the court the defendant brought this appeal. The parties are referred to herein as plaintiffs and defendant as they appeared in the trial court.

The evidence shows that a strip of ground between Choctaw Avenue and the Rock Island Railroad tracks is used by the defendant as a junk yard upon which is piled and strewn junk of every kind and description, the defendant conducting at said location what is known as a junk or salvage business. Photographs admitted in evidence show at one end of the yard a large shed constructed of scrap materials and a small shack occupied by the yard keeper as living quarters, and the remainder of the yard which is between four and five hundred feet long is well covered with scrap iron and other junk. The record further shows that on the opposite side of Choctaw Avenue from the junk yard is a residential district consisting of substantial and expensive residences and well-kept premises. The complainants are residents and property owners in this vicinity. It is alleged in plaintiffs' petition, and the testimony of numerous witnesses shows, that the junk yard was not properly drained and that water stood in pools after rains, and that water collected in old automobile casings and other receptacles in...