116 Ark. 386 | Ark. | 1915
(-after stating the facts). In Durfey v. Thalheimer, 85 Ark. 552, the court said:
“A livery stable, even in a -city or (town, -is not necessarily or prima facie a nuisance. It may become so by the manner in which it is constructed or conducted. It is the duty of every one to so use his property as not to injure that of another; and it matters not how well constructed or conducted a livery stable may be, it is nevertheless a nuisance if it is so built or used as to destroy the comfort -of persons owning and occupying adjoining' premises, creating annoyances which renders life uncomfortable; and it may be abated as a nuisance.”
Cyc. says: “A private nuisance is anything done to the hurt, annoyance or detriment .of the lands, tenements or hereditaments of another, and not amounting to a trespass, thus any unwarrantable, unreasonable or -unlawful use by a person -of his own property, real or personal, to the injury of another, constitutes -a private nuisance.” 29 Cyc. 1152.
In Blass v. Reinman, 102 Ark. 293, the court said:
“A livery stable in a town or city is not necessarily a nuisance * * *, but if it is conducted or kept or used in an improper manner, if by the unwarrantable and unreasonable use thereof it destroys the comfort of the adjoining owner so as to palpably and sensibly diminish or destroy the lawful use and enjoyment of his property, then the livery stable becomes a nuisance.”
The keeper of a jack in a town was held to be a nuisance in Ex parte Foote, 70 Ark. 12.
The burden of proving that the keeping of the stable deprived appellant of the comforts of home or rendered life in her home uncomfortable, rested upon her and it was necessary to show it by a preponderance of the testimony, as said in the Durfey case, supra.
There was testimony introduced, supporting the allegations and contention, but the majority of the court is of the opinion that the finding of the chancellor is not against the clear preponderance of the testimony and it will not be disturbed. If it could be shown that the stallions were kept in such close proximity to appellant’s home and used there for breeding purposes, it would have constituted a nuisance that could have been abated, but from the testimony it does not appear that they were so used, but may have been kept in training for racing only, these being staibles of the fair association where a track was maintained and racing conducted. The stables can be abated by appropriate proceedings hereafter if they shall become a nuisance.
Finding no error in the record, the decree is affirmed.