Terrell v. Wright

• Decision Date: 13 July 1908
• Citation: 112 S.W. 211,87 Ark. 213
• Parties: TERRELL v. WRIGHT
• Court: Arkansas Supreme Court

112 S.W. 211

87 Ark. 213

TERRELL v. WRIGHT

Supreme Court of Arkansas

July 13, 1908

Appeal from Ouachita Chancery Court; Emon O. Mahoney, Chancellor affirmed.

Judgment affirmed.

H. S Powell and Campbell & Stevenson, for appellant.

It is not contended that a planing mill is a nuisance per se, but when a lawful business conducted in a residential part of a town or city is attended with such noise, or occasions smoke and soot to such an extent, as to cause material discomfort, distress or injury to ordinary and normal persons living in the vicinity, it becomes a nuisance, and may be enjoined as such. It is not necessary that the owner be actually driven from his dwelling, but it is sufficient if the ordinary use and enjoyment of his home as such is impaired or rendered physically uncomfortable to him. Previous existence of other nuisances of similar character will not excuse the maintenance of a new one which constitutes a material addition to those already existing. Nor is it an excuse that the business is located in a convenient spot for carrying on such business. 21 Am. & Eng. Enc. of Law, 695; 2 Sim. (N.S.), 133; 3 Eng. Cas. (L. R.), 409; Joyce on Nuisances, § 95, p. 192; Id. § 143; 5 C. E. Green (N. J.), 201, 205; 12 L.R.A. 53, 55, 56 and cases cited; 9 L.R.A. 711; 108 U.S. 317; 103 N.Y. 21; 72 Cal. 248; 55 Conn. 31, 3 Am. St. Rep. 17; 22 N.J.Eq. 25.

Gaughan & Sifford, for appellee.

This is a lawful business, and before it could be declared a nuisance the discomfort resulting from its maintenance must be substantial and cause a tangible damage, must be such as would materially affect the comfort and home enjoyment of a normal person. The mere fact that it may create some inconveniences or those noises which are incident to city life is not sufficient to justify an injunction. 12 L.R.A. 53; 98 Am. Dec. 221; 85 N.C. 358; 73 N.C. 232.

OPINION

HILL, C. J.

Terrell and Watts brought suit in chancery to enjoin Wright from operating a planing mill situated upon a lot owned by him, near which the plaintiffs had their residences, alleging that it was a nuisance, and rendered their homes uncomfortable by reason of its noise, smoke, soot and cinders. The planing mill was located on the block between Jefferson and Jackson streets in the city of Camden. The Iron Mountain railroad is operated across the block, and the electric light plant is also on the same block, immediately west and adjoining the mill. California Street is west of the electric light plant, and adjoins it. Plaintiff Watts lives on the block north of Jefferson Street; plaintiff Terrell lives on California Street. One is north of the planer, and the other west. The railroad crosses California Street at the electric light plant, and is between the residences of the plaintiffs. Near their residences is a place where locomotives take water from a water tank. There is a spur track from the railroad to the block where the planer is located.

The planing mill is operated with steam furnished from the electric light plant. This suit was one against the owner of the planer, and did not include the electric light plant. The ground upon which the planer was built was used as a lumber yard by Mr. Wright before he built the planer. The mill is a comparatively small one, and the machines were not placed on floors, but upon the ground, upon concrete foundations, so as to make as little noise as possible; no whistle was used, and the machinery was operated not earlier than 7 o'clock in the morning and not later than six in the evening.

A large number of witnesses testified on behalf of the plaintiffs, tending to support the allegations of the complaint, and quite as many if not more testified on behalf of the defendant, tending to support the answer, which denied the allegations of the injurious effects of the planing mill on plaintiff's homes, and alleged it was no more noisy or objectionable than the electric light plant and the water tank where the locomotives frequently made much noise in blowing off steam, cleaning out cinder boxes, etc. The chancellor refused an injunction, and the plaintiffs appealed.

In Powell v. Bentley & Gerwig Furn. Co., 34 W.Va. 804, 12 S.E. 1085, 12 L.R.A. 53, the court said "According to...