Yaffe v. City of Ft. Smith

• Decision Date: 19 November 1928
• Docket Number: (No. 270.)
• Parties: YAFFE v. CITY OF FT. SMITH et al.
• Court: Arkansas Supreme Court

10 S.W.2d 886

YAFFE v. CITY OF FT. SMITH et al.

(No. 270.)

Supreme Court of Arkansas.

November 19, 1928.

Rehearing Denied December 10, 1928.

Appeal from Sebastian Chancery Court, J. V. Bourland, Chancellor.

Suit by the City of Ft. Smith and others against Simon Yaffe. From the decree, defendant appeals. Reversed and remanded with directions.

Hill, Fitzhugh & Brizzolara, of Ft. Smith, for appellant.

Roy Gean, of Ft. Smith, for appellees.

MEHAFFY, J.

The appellant, who was defendant below, had been operating a junk yard on the south side of the city of Ft. Smith, near the yards of the Ft. Smith & Western Railway Company, for a number of years. The scrap iron in which the defendant dealt was stored in three places; that is, three different piles. Appellant says that one pile is ordinary junk, another made up largely of automobile parts, and the third consisting of I-beams and structural iron which was retailed by him for use in buildings. The three piles are within a block of each other. There are no residences near the junk yard, and the business enterprises near there were put there after the defendant established his junk yard.

The plaintiffs below were the city of Ft. Smith, members of the board of health, and C. N. Geren, Allen Henderson, Tom Drake, L. S. O'Neal, Leon Williams, and Mechanics' Lumber Company. All had business property in the vicinity of the junk yards. They alleged: That the junk yards were a public and private nuisance. That appellant unlawfully, knowingly, and willfully kept stored on the property used as a junk yard a large pile of old automobiles and parts, irons, steel, castings, rubber, bones of animals, tin cans, buckets, containers, glass jugs and jars, rags, boilers, pipes, sheet iron, and all kinds of old junk of almost every conceivable kind, character, and description, all of which is piled in and on the streets and sidewalks and piled under sheds and on vacant property, several feet high, much of which protrudes out on the sidewalks. That appellant burned rubber which created offensive odors, and that there were many old containers that held water and created breeding places for mosquitoes. That it created an unhealthy, unsightly, and dangerous condition, and that the plaintiffs suffered great and irreparable and continuing damage. That appellant had often been requested and demanded to abate the nuisance, but he refused to do so. It is also alleged that the maintaining of the junk yard in the manner it was maintained impedes and prevents the development of that section of the city. The plaintiffs below owned valuable property in the vicinity of the junk yard, and they alleged that rats accumulated and inhabited in said junk yard, and that the accumulation of said junk at the yard constituted a serious menace to the public health, welfare, and safety. They also alleged that there were offensive odors and fumes, and asked that appellant be permanently enjoined and that he be required to abate such public and private nuisance.

The defendant filed a demurrer on the grounds that the plaintiff had no legal capacity to sue, and also on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer.

The appellant then filed a motion to strike or dismiss as to the board of health and city of Ft. Smith. Both parties agree that this motion was granted by the chancellor orally, but the record does not show this. The parties, however, would have the right to amend the record by agreement.

The answer admitted that appellant was maintaining a junk yard within two or three blocks of Garrison avenue, but he denied all the other material allegations in plaintiffs' complaint. He alleged that he was doing a lawful business, and that under the Constitution of the State of Arkansas, and of the United States of America, he is entitled to conduct said junk yard; that it was not conducted in such way as to constitute a nuisance; that he had conducted a junk yard at that place for a long period of years and prior to the time of the erection of buildings by other property owners.

The court, after hearing the testimony, appointed a special commission with instructions to go in a body to the junk yard and determine upon the basis of a decree and to report whether it could be abated without its bodily removal. This commission reported recommending a perpetual injunction. This commission was appointed by the court without the knowledge or consent of either party. The appellant then filed a motion to strike from the files the report of the special commissioners. This motion was overruled, and appellant excepted. The court rendered a decree against appellant, holding that the junk business was a nuisance, and enjoining appellant and his employés, as prayed for in the complaint, requiring appellant before the 1st of July, 1928, to erect a substantial cover over the junk piles, preventing the rain from becoming stagnant so as to prevent the breeding of mosquitoes. The decree also prevented the appellant from placing upon the premises any material except solid iron. This appeal is prosecuted to reverse said decree.

Allen Henderson, one of the plaintiffs, testified, identifying photographs and stating that he had been in that locality for several years, and at various times had noticed rotten bones. Had also noticed cans that contained water. This witness also said that the defendant burned stuff at his junk pile every few days; burns rubber and other things that are offensive. That he had seen rats there, but did not know where they came from. Some of the junk extended out into the street. Old cars were parked around the place and they were broken up with sledge hammers. There were quite a lot of old oil cans with water standing in them. On cross-examination this witness said that one of the junk piles was back of the O'Neal and Drake property and on this property there was kept horses and mules.

Dr. Johnson, health officer of the city, testified that he made an investigation in August, 1927, saw a number of cars being dismantled on the sidewalk, and asked appellant to correct conditions. On a second trip there, some of the conditions had been corrected and some had not. Appellant had put oil around in several places. At one place there was a half carload of automobile tires and some cans that contained water. Also found some tubs containing fruit jars and fenders that contained water. Across the street he found probably half a carload of vessels that Mr. Yaffe said he bought at Camp Pike. They were pitchers, pans, and like receptacles. Some of them contained water. After witness notified appellant, he removed the bones and the vessels he had bought at Camp Pike. This witness on cross-examination testified that these vessels had not been there for about five months. Witness testified that the bones were removed as soon as he notified the appellant. On his second visit there the vessels that contained water had been removed. It takes mosquitoes from 9 to 18 days to breed.

Dr. Charles S. Holt testified that he was president of the board of health. He testified about the junk that was on the yards, and in this respect his testimony was substantially the same as that of Dr. Johnson. He also testified that anything that contains water may affect the health of the people. The junk was piled 15 or 20 feet high. This witness had told appellant that he would have to put a roof over his junk yards. Any place that would catch water would breed mosquitoes.

C. N. Geren, one of the plaintiffs, testified about the junk piles being unsanitary and the wrecking of automobiles in the street, and that the junk was 15 or 20 feet high, but that he had never made any inspection of the junk piles; simply noticed them. Appellant will buy an old car and dismantle it. That they had the stuff on the streets. This witness owned cows and stock in the barn which was near this place.

L. S. O'Neal testified that the appellant had barrels standing near the building, and that he burns rubber and stuff, and you could smell it at times. That there were a lot of barrels and parts of automobiles about the place, and that it injured his property. That is, he could not rent it successfully. The barrels he saw were upside down and he did not see any water in them.

Leon Williams, one of the plaintiffs, testified as to the junk and places holding water. That he was in the stock business. His barns are across the street from the junk pile, and he handled horses, cows, and mules; kept an average of about 25 head. Also kept goats, chickens, and other animals. The junk yard was there before he put his stable there.

M. J. Miller, one of the plaintiffs, testified substantially the same as the other witnesses about the junk pile, but he did not notice any green bones and saw water only in a few places. Found some containers with water in them.

J. S. Hill, president of the Mechanics' Lumber Company, testified about the junk pile; about there being metal, wooden barrels, fruit jars, and bottles that have water in them at times; and that the mosquitoes are bad at his place at night. Saw some green bones there last summer and they had a bad odor.

Dr. James A. Foltz, a witness for defendant, testified about examining the junk yard, and that he found nothing unsanitary about it. That it was unsightly and there were bars or iron pipes and every sort of thing. That he was interested in the water...