Mergenschroer v. Ashley
| Decision Date | 03 June 1968 |
| Docket Number | No. 5--4603,5--4603 |
| Citation | 244 Ark. 1238,429 S.W.2d 120 |
| Parties | Pete C. MERGENSCHROER et al., Appellants, v. Gerald ASHLEY, Appellee. |
| Court | Arkansas Supreme Court |
Jack Sims, Little Rock, for appellants.
No brief for appellee.
Appellants Pete C. Mergenschroer et al. appeal from a chancery decree refusing to enjoin appellee Gerald Ashley's operation of Jo-Jo's Bar-B-Que at 3401 Parker Street, North Little Rock, as a nuisance, and refusing to cause appellee to remove as an obstruction that portion of his barbecue pit that extended into the street right of way. For reversal appellant relies upon the following points:
I. The Chancellor erred in holding that the North Little Rock Board of Adjustment was empowered to allow and approve defendant's building his structure into the public right of way.
II. The Chancellor erred in refusing or declining to order the defendant to remove that part of the structure known as Jo-Jo's Bar-B-Q which extended into the street right of way.
We do not reach the alleged error of the trial court in holding that the North Little Rock Board of Adjustment was empowered to allow and approve appellee's building of the encroachments on the street, because appellants have failed to show any special damages which would entitle them to enjoin the encroachments.
The record shows that the dedicated street right of way is 50 feet; that the paved or traveled portion of the road comprises some 25 or 30 feet; and that appellants readily recognize that they could not drive on the 8 or 9 feet of the dedicated right of way obstructed by the barbecue pit.
In Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S.W.2d 35 (1956), we held that before one could abate an encroachment upon a public street he must show special damages not common to the public at large. Here the encroachment shown is not on any portion of the street which appellants propose to use and because of their failure to show any special damages from the encroachments not suffered by the public in general, we find their contentions to be without merit.
Affirmed.
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Lawson v. Sipple, 94-586
...suffered an injury different from the public at large because the encroachment is on a public right-of-way. See Mergenschroer v. Ashley, 244 Ark. 1238, 429 S.W.2d 120 (1968). We do not reach the issue because defendant did not make this argument below, and we will not consider it for the fi......
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Hicks v. Flanagan
...he has suffered special damage as a result of the encroachment, which was not common to the public in general. Mergenschroer v. Ashley, 244 Ark. 1238, 429 S.W.2d 120 (1968); Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S.W.2d 35 (1956). Here, appellants proved no special......