Ozark Poultry Products, Inc. v. Garman, 5--5647
| Decision Date | 15 November 1971 |
| Docket Number | No. 5--5647,5--5647 |
| Citation | 251 Ark. 389,472 S.W.2d 714 |
| Parties | , 3 ERC 1545, 2 Envtl. L. Rep. 20,016 OZARK POULTRY PRODUCTS, INC., Appellant, v. Roy GARMAN et al., Appellees. |
| Court | Arkansas Supreme Court |
Putman, Davis & Bassett, Fayetteville, for appellant.
Eugene Coffelt, and Lloyd C. Burrow, Jr., Bentonville, for appellees.
The appellant owns a rendering plant between Siloam Springs and Gentry. The appellees--nine homeowners in the vicinity--brought this suit to abate the plant, as a nuisance polluting both the air and a natural stream. The chancellor found the plant to be a public nuisance and ordered it closed unless conditions at the plant were corrected within a reasonable time fixed by the court. For reversal the appellant argues a single point: The appellees were not entitled to a decree abating a public nuisance, because they failed to show that they have suffered special damage different from that suffered by the public in general.
The facts are not in dispute and need not be narrated in detail. The appellant manufactures an ingredient used in fertilizer and poultry feed, by cooking such organic matter as dead farm animals and the offal discarded by poultry processing plants in northwest Arkansas and southern Missouri. The odors from the plant are so offensive that the plaintiffs and other persons in the vicinity are often unable to sleep at night or to eat their meals without nausea.
The appellant's manager admitted on the witness stand that the plant's operation is in violation of law. That the plaintiffs have been seriously damaged in the enjoyment of their homes is not open to question. Nevertheless, the appellant, citing Stoutemeyer v. Sharp, 89 Ark. 175, 116 S.W. 189, 21 L.R.A.,N.S., 74 (1909), and Martin v. Hornor, 83 Ark. 330, 103 S.W. 1134 (1907), insists that since its foulsmelling rendering plant inflicts the same damage upon all homeowners within an area of several square miles, the facility is a public nuisance that can be abated only upon complaint by the attorney general, the prosecuting attorney, or other representative of the public.
The law offers no such immunity to a confessed and flagrant wrongdoer in the circumstances of this case. Even though the cancellor referred to the rendering plant as a public nuisance, which it may be, it is also a private nuisance with respect to the plaintiffs. The difference is that a public nuisance involves a violation of a public right held in common by the community as a whole, while a private nuisance is a violation of the rights of the individual, such as the right to enjoy his home. In both the Stoutemeyer case and the Martin case, supra, relied upon by the appellant, the court was dealing with an obstruction to a public street, clearly constituting a public nuisance.
An excellent statement of the distinction between the two classes of nuisances was made in Fisher v. Zumwalt, 128 Cal. 493, 61 P. 82 (1900), where the court said:
There is no doubt but that there are many nuisances which may occasion an injury to an individual for which an action will not lie by him in his private...
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