Swaim v. Morris

• Decision Date: 07 February 1910
• Citation: 125 S.W. 432
• Parties: SWAIM et al. v. MORRIS.
• Court: Arkansas Supreme Court

125 S.W. 432

SWAIM et al. v. MORRIS.

Supreme Court of Arkansas.

February 7, 1910.

Appeal from Lonoke Chancery Court; Jno. E. Martineau, Chancellor.

Suit by J. Swaim and another against George W. Morris. From a judgment dismissing the complaint on demurrer, plaintiffs appeal. Affirmed.

The appellants Swaim and Hicks alleged that they were the owners of certain lots in the incorporated town of England, on which were situated business houses and residences. They allege that on one of the lots was a hotel in which appellant Hicks and family resided, and which was also occupied by other families and guests of the hotel, and that appellant Swaim had his residence on another lot adjoining the Hicks lots. They allege and show the location of their residences and business houses, with reference to certain streets and sidewalks, and then allege in part, as follows: That the said defendant George W. Morris, is preparing to erect and is erecting a steam cotton gin to be used for the public in ginning cotton; that if said steam gin is permitted to be erected and used for the purpose mentioned it will expose plaintiffs' property to great danger of fire from the operation of the engine attached to said gin and from the constant danger of fire taking the cotton while the same is in the course of being ginned therein; that the necessary waste in ginning said cotton and in loading and unloading of same will cause stock to congregate around said mill and thereby produce a noxious odor, as also the decay of said waste matter, thereby rendering the enjoyment of the property of the said plaintiffs uncomfortable and inconvenient; that said gin will be a nuisance by reason of the unsightly appearances, unpleasant sounds, and surroundings caused therefrom; that the erection and operation of said gin will endanger the lives and the property of the said plaintiffs and their families as well as the general public, and will greatly depreciate the value of plaintiffs' property; that the health and comfort of the plaintiffs and their families, and the occupants and guests of said hotel, as well as the general public, will be greatly injured from the smoke and cinders from said engine and from the noise from the operation of said gin, and the wagons and people congregated around said gin at all hours of the day and night; that there is no place between where the said steam gin is being erected and the sidewalks in which to drive and unload said cotton and reload cotton and cotton seed and haul away from said gin, and that the access to plaintiffs' property will be cut off by reason of the necessary obstruction by wagons, flowing water, grease, and other objectionable matter that will escape from said engine and gin upon the sidewalks and into the streets, so that said sidewalks and streets will be made impassable, which has heretofore been done by the operation of a steam gin on said property; that the town of England is located in a great cotton country, and the cotton ginned within and near the said town of England during the cotton season will average from 16,000 to 20,000 bales, and during the cotton ginning season cotton will be brought to said gin in wagons, which will blockade the said streets and sidewalks as aforesaid so as to prevent said plaintiffs, Swaim and Hicks, and their families, and the general public from access to and from their residences and places of business, and to the great injury, annoyance, and inconvenience of the general public. The complaint then set up that there had formerly been a ginhouse on block 41, which had become a great private and public nuisance, but which had recently been destroyed by fire. After these allegations the complaint contains the following: That since the destruction of said gin an ordinance has been passed by the town council of the incorporated town of England prohibiting the building and construction of a steam cotton gin within certain limits of the said town embracing block 41, and which ordinance is in words and figures, as follows, to wit: "An ordinance prohibiting the building, erection or construction of gins, mills or other manufacturing plants on certain blocks in the town of England, Arkansas. Whereas the operation of manufacturing plants using steam as a motive power upon the property described below is detrimental to the health and comfort of the citizens of the town of England, and exposes the neighboring property to the danger of fire and renders the enjoyment of dwelling houses and other houses materially uncomfortable by smoke, cinders, noise, offensive odors...