Lonoke v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 29 November 1909
• Citation: 123 S.W. 395,92 Ark. 546
• Parties: LONOKE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Arkansas Supreme Court

123 S.W. 395

92 Ark. 546

LONOKE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Arkansas

November 29, 1909

Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

T. C Trimble, Joe T. Robinson and T. C. Trimble, Jr., for appellant.

One cannot erect a nuisance upon his own land adjoining vacant lands owned by another, and thus control the use to which the vacant lands may be subjected in the future. 63 N.Y. 568; 20 Am. R. 568. Brick burning is not a nuisance per se, but may become so by reason of the manner of operation. Wood on Nuisances, 727. The depot and cotton platform are a nuisance and should be abated. 70 Ark. 12; Joyce on Nuisance, pp. 299 243. If an obstruction is unnecessarily created or safety in the streets is unnecessarily impaired, a nuisance is created. 36 N.Y.S. 863. And such obstruction is not excused by the fact that it is necessary for the convenience of the railroad company. 77 Ia. 442; 95 N.C. 602; 59 Me. 189. A business strictly lawful may be so conducted as to be a nuisance. 86 Ind. 117; 73 Ind. 184. A railroad cannot acquire by prescription a right to maintain a nuisance. 91 Tenn. 445; 78 Ga. 271; 73 N.Y.S. 241; 107 N.Y. 360; 103 N.Y. 77; 37 Barb. 301; 53 Barb. 629. The town had a right to regulate the use of the streets. Kirby's Dig., § 5456; 58 Pa. 254; McQuillin on Mun. Ord., § 358; 111 Cal. 25; 36 Ind. 552; 15 Mich. 54; 62 Tex. 715. Anything which renders the use of a street hazardous is a nuisance. 39 Ga. 725; 40 Ill. 428; 44 Hun 219; 95 N.Y. 83; 29 Hun 105. A wooden building within a district in which such buildings are prohibited may be removed by ordinance. 117 Pa. 326; 11 Met. 55; 2 Rawle 262; Kirby's Dig., § 5439. The unreasonableness of the ordinance must be clearly shown. 31 Minn. 402. And inconvenience to the railroad company is not sufficient for that purpose. 45 N.Y. 154.

John T. Hicks and Thos. S. Buzbee, for appellee.

The ordinance was void because not adopted at a lawful meeting. The action of the city council in destroying appellee's property was not authorized by law.

OPINION

FRAUENTHAL, J.

The appellee, the Chicago, Rock Island & Pacific Railroad Company, owns and operates a line of railroad which passes through the town of Lonoke, Arkansas. In about the center of the business portion of the town are located its depot grounds. These depot grounds extend about 250 feet from the northern to the southern boundary thereof, including the streets, and upon the eastern boundary is what is known as Center Street and on the western boundary Richwood Street. These two streets run north and south across the right of way and railroad tracks of appellee, and are about 300 feet apart. Upon these depot grounds the appellee has built and maintained for at least forty years a passenger and freight depot, platforms and structures referred to in this litigation. The right of way and railroad track of the appellee runs from east to west through about the middle of these depot grounds. Its passenger depot is situated north of the track. South of the railroad track and adjacent to it are located its freight depot and platform and other structures, which extend practically from Center to Richwood Street. Upon the southern extremity of the depot grounds are located business houses which are 125 feet distant from the railroad track, and these are located nearer the track and freight depot than other buildings in the town. In 1907 a number of citizens made complaint to certain officials of appellee that the freight depot and platform and structures south of the railroad track were dangerous to the health and convenience of the citizens, and that they tended to obscure the view of the crossing at Center Street and that consequent upon their location the switching of trains at that crossing, in placing the cars at the depot for unloading, made dangerous and unsafe to the people the crossing at Center Street, over which a great per cent. of the people passed. And they requested the removal of the freight depot, platform and structures located south of the track. The railroad officials promised to remedy the conditions. No action being taken by the appellee in that regard, the council of the town of Lonoke on August 19, 1908, passed an ordinance declaring said freight depot, platform and structures to be nuisances, and ordered the appellee to remove them, under a penalty for failure to do so; and in event it did not do so it ordered the town marshal to remove them. Thereupon the marshal and officials of the town of Lonoke threatened under and by authority of said ordinance to move the said freight depot and structures, and the appellee then began to remove them itself to a point upon its right of way and about 200 or 300 yards west of its present location. This proposed place of removal was located in front of and near the residence property of J. H. Melton; and he and a great number of the citizens of Lonoke objected to and protested against the removal of said freight depot and structures from their present location.

On October 6, 1908, the said J. H. Melton instituted this suit in the chancery court against the appellee, alleging that it was erecting said freight depot and structures adjacent to his residence, which would injure him in the enjoyment and comfort of his home, and would constitute a nuisance; and he sought to enjoin the appellee from erecting and maintaining the said freight depot and structure at said proposed location. The appellee in its answer to said bill asked that the town of Lonoke and its marshal and other officers be made parties to the suit; and against them it brought a cross complaint in which it alleged that the marshal and officers of the town of Lonoke, acting without right or authority, were threatening and proceeding to destroy said freight depot, platform and property of appellee and to remove same from their present location on its depot grounds; and it sought to enjoin the said marshal and officers of the town from doing said alleged wrongful acts, and from destroying its property. The town of Lonoke and its officers made answer to this cross-complaint. They denied that they were proceeding to destroy the property of appellee without proper authority. They set forth the above ordinance, declaring said property to be a nuisance, and alleged that they were proceeding themselves to abate the same. They alleged that the said freight depot and structures were a public nuisance because they were injurious to the health of the people of the town, because they increased the hazard by fire to the property of the people of the town, and because in connection with the movements of its cars at the said crossing at Center Street appellee made that crossing dangerous to the lives and persons of the people who passed over the same; and in their answer they prayed "that the cross-complaint be dismissed for the want of equity; that the said buildings and platforms aforesaid in the cross-complaint be declared to be a nuisance, and that the same be abated."

Upon the trial of the cause in the chancery court the witnesses appeared in person and gave oral testimony. A great number of witnesses testified on behalf of the parties to the suit, and the evidence presented before the chancellor is quite voluminous. The chancellor found that the said ordinance was not legally passed, and that it was invalid and void. He further found that the said freight depot, platform and other structures were not a nuisance, and that the acts of the appellee in the manner in which it maintains its property did not constitute a nuisance. It dismissed the complaint of J. H. Melton. It permanently enjoined the town of Lonoke and its officers from destroying or removing the said depot and platform, and from interfering with the railroad company in restoring same. From that decree the town of Lonoke and its officers have appealed to this court.

The town of Lonoke and its officers were proceeding to tear down and destroy the freight depot and other structures of the appellee located upon its depot grounds by the authority of an ordinance of that town declaring the same to be a nuisance and ordering the abatement thereof. It is contended that said alleged ordinance is invalid for the reason that it was not legally passed; that the ordinance was passed at a called meeting of the town council, and that one of the members of the council was not present at that meeting; and had no notice thereof. But we do not think that it is necessary to determine whether or not this ordinance was legally enacted because the legality or illegality of the passage of said ordinance cannot affect the equitable rights of the parties in this litigation and the subject-matter thereof. If it should be determined that said ordinance was legally passed, that would not necessarily make an actual nuisance the structure and things complained, if in law and in fact they do not come within the legal notion of a nuisance. In the case of Yates v. Milwaukee, 77 U.S. 497, 19 L.Ed. 984, Mr. Justice Miller says: "But the mere declaration by the city council that a certain structure was an encroachment orincident obstruction did not make it so, nor could such...