| Ark. | Feb 7, 1910
Lead Opinion
(after stating the facts.) Sec. 5439 of Kirby’s Digest provides: “They (municipal corporations) shall have the power to regulate the building of houses; to make regulations for the purpose of guarding accidents by fire, and to prohibit the erection of any building or any addition to any building unless the outer walls thereof be made of brick or mortar or stone and mortar, and to provide for the removal of any building or addition erected contrary to such prohibition.” Under this section the town of England had the power to regulate the building of gin houses so as to guard against accidents by fire. But it had no power under this statute' to prohibit the erection of gin houses altogether. This statute therefore can not be invoked as authority to the town council to pass an ordinance to • prohibit the erection of gin houses in the town of England.
But if the ordinance is valid under the above statute, then the remedy at law is.adequate and complete. For the ordinance provides a fine of two hundred dollars for each day during which the ordinance was violated, and for an abatement of the nuisance. So that resort to injunctive relief is entirely unnecessary and improper.
Likewise, if the ordinance was valid under the general police power of the town,“to prevent injury or annoyance within the limits of the corporation, from anything dangerous, offensive or unhealthy, and can cause any nuisance to be abated,” the remedy at law by fine, or the abatement of the nuisance, provided for by the ordinance itself, was still a complete and adequate remedy, and it was wholly unnecessary for appellants to invoke the aid of a court of equity. The language of Judge Bleckley of the Supreme Court of Georgia in Powell v. Foster, 59 Ga. 790" date_filed="1877-08-15" court="Ga." case_name="Powell v. Foster">59 Ga. 790, is appropriate here. “What,” says he, “is the obstacle to resorting to the mayor and council for protection, and obtaining it a once? The chancellor could see none, nor can a majority of this court. To anticipate the inefficiency of a statutory remedy exactly adapted to the case and apparently adequate and complete is warranted neither by precedent nor any general principle. Should the remedy be tried, and obstacles to its speedy success actually arise, it may then be in order to invoke the interposition of chancery by injunction.” See authorities there cited.
But a majority of the court are of the opinion that the building of a gin in an incorporated town is not per se a nuisance, any more than the building of a livery stable.
Speaking of the latter in Durfey v. Thalheimer, 85 Ark. 544" date_filed="1908-03-09" court="Ark." case_name="Durfey v. Thalheimer">85 Ark. 544, 552, this court, through Judge BatteE, 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.” So we say of a gin. It could be erected and operated at a place and in a manner to become a nuisance, but it -might also be erected and operated at a place and in a manner so as uot to be a nuisance. It is therefore clearly not a nuisance in itself or per se. As we said in the recent case of Lonoke v. Chicago, R. I. & P. Ry. Co., 92 Ark. 546" date_filed="1909-11-29" court="Ark." case_name="Lonoke v. Chicago, Rock Island & Pacific Railway Co.">92 Ark. 546: “The act done or the structure erected may be a nuisance per se, or the act or use of the property may become a nuisance by reason of the circumstances or location or' surroundings. In the one case the thing becomes a nuisance as a matter of íaw, in the other it must be proved by evidence to be such under the law.” The ordinance, therefore, as an exercise of the general police power of the town, was “too broad, and is invalid.” Arkadelphia v. Clark, 52 Ark. 23" date_filed="1889-05-15" court="Ark." case_name="Town of Arkadelphia v. Clark">52 Ark. 23. Hence appellants could not avail themselves of the ordinance to obtain injunctive relief. If, however, the erection of a gin would be a nuisance per se, appellants could have it enjoined without any ordinance. But, as we have already shown, the erection of a gin would not be per se a nuisance. “A nuisance at law or a nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” 29 Cyc. 1153. See other authorities cited in appellee’s brief.
In note to West v. Ponca City Milling Co., 2 A. & E. Ann. Cases, 249, 254, it is said: “Where an injunction is sought merely on the ground that a lawful erection will be put to a use that will constitute a nuisance, the court will ordinarily refuse to restrain the construction or completion of the erection, leaving the complainant free, however, to assert his rights thereafter in an appropriate" manner if the contemplated use results in a nuisance.” See cases.
The judgment of the chancery court was correct, and it is affirmed.
Dissenting Opinion
dissent, holding that the ordinance passed by the town council of England is valid, and that plaintiffs have stated in the complaint facts sufficient to show a special injury to their property and entitle them to maintain this action to prevent a violation of the ordinance.