170 S.W.2d 995 | Ark. | 1943
Appellants, L. C. Eddy and others (plaintiffs below), on December 2, 1942, brought suit in the *844 Garland chancery court to enjoin appellees, D. P. and R. E. Thornton, doing business under the name of Thornton Brothers Lumber Company, a partnership, from erecting and operating a saw mill and a planer mill on an acre of ground just without the corporate limits of the City of Hot Springs, Arkansas.
The original, verified complaint was filed by appellant, Eddy, and the other appellants, on their motion, were made parties plaintiffs, adopted the complaint of appellant, Eddy, and asked for the relief for which he prayed.
The complaints alleged that appellees were about to erect and operate a saw and planer mill on property which they had owned and operated as a lumber yard for approximately twelve years; that the property is located in a residential district in the Woodlawn Addition to the City of Hot Springs and that the operation of this machinery will be by steam power "produced by the use of shavings and sawdust for fuel"; that the "noise, smoke, cinders, loading and unloading logs and lumber and the noise from log trucks and lumber trucks would prevent the enjoyment of their residential property located by and adjoining the property of the appellees"; that their property would depreciate in value; that their erection and operation would constitute "a danger and menace to the life and health of plaintiffs" and "constitute both a private and public nuisance."
Appellees filed "motion to dismiss" appellants' complaints on the following grounds: "1. That before the plaintiff herein could maintain this action, he would have to allege and prove that the saw and planing mill he complains of in his complaint is a nuisance per se; 2. That the plaintiff has failed to allege that the mill complained of in his complaint is a nuisance per se; 3. That as a matter of law, a planing mill or saw mill, or both, are not nuisances per se; 4. that the plaintiff has an adequate remedy at law; 5. That the erection of the mill complained of by the plaintiff in his complaint has not as yet been completed, and that the mill is not in operation, and, therefore, the plaintiff would have no *845 way of knowing or proving to this court that the said mill when in operation would become or be a nuisance in fact."
Upon consideration of appellees' motion to dismiss, the court permitted appellee, D. P. Thornton, to testify (quoting from appellants' brief): "We plan to build a saw mill on these premises. We have done no work whatever toward building the mill; we have just moved the equipment on the property. There has been no construction of any kind started. We own approximately one acre." He further stated that they intended to erect and operate a saw and planer mill on the property; that it is located without the corporate limits of the City of Hot Springs, and that the mills will be powered by steam boilers fired with shavings and sawdust. Appellants offered to present proof in support of the allegations in their complaints, but the court refused to hear this testimony and dismissed appellants' complaints for want of equity. To this action of the court appellants asked for and were granted this appeal.
Appellants argue that under the allegations contained in their complaints the injunctive relief prayed should have been granted and that the trial court erred in holding otherwise. We cannot, however, agree with this contention, for the reason that the erection of a saw mill and planer mill would not be a nuisance per se.
Whether the "motion to dismiss" be treated as such, or as a demurrer, the result would be the same.
The effect of appellants' allegations upon which they seek an injunction is that appellees, who have, for the past ten or twelve years, been operating a lumber yard in a residential district within the city of Hot Springs, Arkansas, are about to erect and operate a saw mill and a planer mill on this property, and the operation of which, when so erected, would constitute such a nuisance as should be enjoined in advance of erection and operation.
As was said by this court in the comparatively recent case of Moore v. Wallis,
The above declarations of law, as announced in the Moore-Wallis case, were reaffirmed in the case of Clark v. Hunt,
So in the instant case, since the proposed erection of the saw mill and planer mill in question does not constitute a nuisance per se, the erection and operation will not be enjoined unless they should be so operated as to, in fact, become a nuisance.
Finding no error, the decree is affirmed. *848