Miller v. Jasinski, CA
| Citation | 17 Ark.App. 131,705 S.W.2d 442 |
| Decision Date | 12 March 1986 |
| Docket Number | No. CA,CA |
| Parties | Herbert and Joyce MILLER, et al., Appellants, v. Bromislaw JASINSKI, et al., Appellees. 85-60. |
| Court | Court of Appeals of Arkansas |
John W. Beason, Jonesboro, for appellants.
Sandra L. Burns, Jonesboro, for appellees.
The appellants are landowners whose residences were located adjacent to and in the vicinity of a sanitary landfill operated by the appellees. The appellants brought this action alleging that the appellees' collection and burial of garbage and industrial and hazardous waste, and use of heavy equipment, created obnoxious odors and excessive noises which interfered with the ordinary use of their properties. Appellants also alleged that they were damaged by diminution of property values and by the loss of use of their properties. They alleged that the operation of the landfill was both a public and private nuisance and prayed that its operation be abated by injunction, and for damages for the diminution of their property values. The appellees answered, denying that any hazardous waste had been placed on the property, asserting that it was in full compliance with all rules and regulations of the Department of Pollution Control and Ecology, that it operated under a permit issued by the agency, and denying all other allegations of the complaint. At the conclusion of the five day trial the chancellor filed a written opinion in which he discussed the evidence presented by both sides and found all of the controverted issues in favor of appellees. The complaint was dismissed on the chancellor's conclusion that the operation of the landfill did not constitute a public or private nuisance.
Appellants bring this appeal contending that the chancellor erred in not finding the operation to be a public or private nuisance, in refusing introduction of evidence of an intended expansion of the landfill, and in refusing to award damages. We find no error.
At the trial the appellants offered evidence that the operation of the landfill was within an exclusively residential area and caused obnoxious odors, excessive noises, littering of the highways, and the creation of a traffic hazard. There was testimony that a change in land contour resulted in an increase in run-off of surface water onto their lands and that the burial of hazardous waste, and failure to adequately control the burial, contributed to appellants' discomfort and created a fear that their water supply would become contaminated by decaying waste. The appellees' witnesses testified that the landfill was operated under well-controlled conditions and regulations, did not generate offensive odors, litter, noise, or undue increases in traffic, and that the conditions of which the appellants complained did not exist and were not likely to occur in the future as a result of the operation of the landfill. There was also evidence that the opinions of appellants' experts as to the effects of the landfill on appellants' property had no reasonable basis. There was testimony that the area was a typical rural community, consisting of scattered private dwellings, with interspersed commercial business enterprises and two operating gravel pits.
A nuisance is defined as conduct by one land owner which unreasonably or unlawfully interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Equity will enjoin the conduct which culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture. The distinction between private and public nuisance is simply the extent of the injury, i.e. the number of the persons suffering the effects of the nuisance. City of Newport v. Emery, 262 Ark. 591, 559 S.W.2d 707 (1977); Ark. Release Guidance Foundation v. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972).
In his thirty page memorandum the chancellor found (with one exception to be hereinafter discussed) all of the controverted allegations in favor of the appellees and concluded that the operation of the landfill did not constitute a nuisance. While chancery cases are reviewed de novo on the record, the findings of a chancellor will not be overturned unless they are found to be clearly against a preponderance of the evidence. ARCP Rule 52(a). Since the question of a preponderance of the evidence turns largely on the credibility of the witnesses, this court defers to the superior position of the chancellor to determine the credibility of the witnesses and the weight to be given their testimony. Bohannon v. Bohannon, 12 Ark.App. 296, 675 S.W.2d 850 (1984).
The trial of this case lasted more than five days, during which over forty lay and expert witnesses testified and numerous documents and exhibits were introduced. A recitation of all of the conflicting evidence would unduly lengthen this opinion. Suffice it to say that from our review of the record we cannot conclude that the chancellor's finding that the operation of the landfill did not constitute either a public or private nuisance is clearly against a preponderance of the evidence.
During the trial, some of the appellants testified that the operation of the landfill had diminished the value of their properties and offered expert testimony as to the extent of that diminution. While the appellees offered testimony that the landfill had no effect upon land values and that the expert's opinion as to the extent of the diminution had no reasonable basis in fact, the chancellor made no finding on the issue of diminution of values. The appellants contend that absent such a finding the chancellor's conclusion that there was no nuisance is clearly erroneous. Appellants argue that even though the...
To continue reading
Request your trial
-
City of Tulsa v. Tyson Foods, Inc., 01-CV-0900-EA(C).
...use and enjoyment of nearby property."); Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579, 587 (1999) (same); Miller v. Jasinski, 17 Ark.App. 131, 705 S.W.2d 442, 443 (1986) (same).16 A nuisance can be public, private or both. Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W......
-
Smith v. Kansas Gas Service Co.
...355, 369 (M.D.N.C. 1997) (need actual interference [cause] substantial enough to reduce market value [effect]); Miller v. Jasinski, 17 Ark.App. 131, 136, 705 S.W.2d 442 (1986) (depreciation in property value standing alone does not make the activity constitute a nuisance which should be aba......
-
Goforth v. Smith
...his property as he chooses so long as he does not unlawfully or unreasonably interfere with or harm his neighbor. Miller v. Jasinski, 17 Ark.App. 131, 705 S.W.2d 442 (1986). It is only the unreasonable use or conduct by one landowner which results in unwarranted interference with his neighb......
-
Aviation Cadet Museum, Inc. v. Hammer
...which results in unwarranted interference with his neighbor that constitutes a nuisance. See Goforth, supra (citing Miller v. Jasinski, 17 Ark.App. 131, 705 S.W.2d 442 (1986)). The findings of a trial judge as to the existence of a nuisance will not be overturned unless they are found to be......