Thiel v. Cernin, 5-642
| Decision Date | 28 March 1955 |
| Docket Number | No. 5-642,5-642 |
| Citation | 224 Ark. 854,276 S.W.2d 677 |
| Parties | Edward C. THIEL and Edward S. Thiel, Appellants, v. Jerry CERNIN and Margaret Cernin, Appellees. |
| Court | Arkansas Supreme Court |
Richard Mobley, Russellville, for appellants.
Scott & Goodier and K. M. Parsley, Dardanelle, for appellees.
This is a suit by appellants in which they seek to enjoin appellees from maintaining a nuisance arising from the alleged wrongful use of a broiler house owned and operated by appellees.
The record reflects that the parties are adjoining land owners of two small tracts on the south side of State Highway 22, approximately 8 miles west of Dardanelle. Mr. Cernin's tract contains 26 acres, and that of Mr. Thiel 12 acres lying immediately west of Cernin's land. These purchases were made in order to procure homes for retirement. Thiel acquired his tract in 1949 and Cernin in 1952. February 1953, Cernin constructed a modern 5,000 capacity broiler house on his property about 30 feet from the separating property line, and about 60 feet from a small house used by Thiel as a guest bedroom and hobby house, and about 170 feet from appellants' residence. Cernin began grosing broilers for marketing and six 'batches' were produced during a ten months' period. No broilers were produced in December and January.
On a trial, the Chancellor found, after a personal inspection of the premises, that although there were some objectionable odors, to some extent caused by the broiler house, however, considering the location of the properties involved and the nature of the surrounding country, injunctive relief should be denied. This appeal followed.
Appellants say: 'There is but one point involved in this appeal: The Chancellor, having found that the broiler house gave off an odor objectionable to appellants on their property, erred in finding that the locality and nature of the surrounding country were such that appellants were not entitled to relief.'
Many witnesses, with evident sincerity and conviction, testified for both parties. The evidence is in irreconcilable conflict and appears to be about equal, in effect,--that on the part of appellants tends to show that at certain stages in the growth of the broilers, when the wind is towards appellants' guest house, foul odors are wafted into it, and also into their residence, materially affecting their comfort. There was testimony on the part of appellees equally as strong and convincing that the odors were infrequent and inoffensive, and that no nuisance resulted. There is evidence that Thiel offered to contribute $1,000 to the cost of moving the brooder house to another location on appellees' tract in order to remove the odor nuisance and that the cost of relocation would not be more than about $1,900,--but that appellees refused the offer.
Without attempting to detail the testimony, it suffices to say that after carefully considering it all, we are unable to say that the Chancellor's findings are against the preponderance thereof.
Our well-established rule is that while we try cases here de novo, and are not bound by the Chancellor's findings on which the decree was based, yet where, as here, the evidence appears in equal balance, the action of the trial court then becomes persuasive on us and sufficient to tip the scales in favor of the court's decree. Grayson v. Bowie, 197 Ark. 128, 122 S.W.2d 536.
There is no contention that the operation of the broiler house is a nuisance per se, but appellants insist that, in the circumstances here, it has become a nuisance per accidens by reason of the locality and its location on the appellees' premises.
Appellants frankly admit that 'the proof shows that the (broiler) house is properly constructed and that appellees are following approved poultry practices' and that the law is well settled 'that the operation of a business may be a nuisance in one locality and not in another.' Jones v. Kelley Trust Co., 179 Ark. 857, 18 S.W.2d 356.
A nuisance...
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Southeast Arkansas Landfill, Inc. v. State, 92-1360
...does not support the trial court's finding and that only slight odor and inconvenience were proven. Appellants cite Thiel v. Cernin, 224 Ark. 854, 276 S.W.2d 677, 678 (1955) for the proposition that the operation of a business may be a nuisance in one locality and not in another. Appellants......
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Flippin v. McCabe, 5-1438
...also, Durfey v. Thalheimer, 85 Ark. 544, 109 S.W. 519; Terrell v. Wright, 87 Ark. 213, 112 S.W. 211, 19 L.R.A.,N.S., 174; Thiel v. Cernin, 224 Ark. 854, 276 S.W.2d 677. The usual rule applied in cases like this is that if the plant involved is not a nuisance per se, then the injunction shou......
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CHAPTER 10 TOXIC TORTS PROPERTY DAMAGE AND PERSONAL INJURY: EMERGING THEORIES AND RELATION TO ENVIRONMENTAL LAW
...intrusions or odors, consistent with the principle that the law does not concern itself with trifles. See, e.g., Theil v. Cernin, 224 Ark. 854, 276 S.W.2d 677 (1955). When, however, the invasion measurably affects the physical condition of land, or the owner can show some measurable impact ......