{ "id": 6138449, "name": "Tommy HIGGS and Patricia HIGGS v. Virgil ANDERSON et al.", "name_abbreviation": "Higgs v. Anderson", "decision_date": "1985-03-06", "docket_number": "CA 84-225", "first_page": "113", "last_page": "117", "citations": [ { "type": "official", "cite": "14 Ark. App. 113" }, { "type": "parallel", "cite": "685 S.W.2d 521" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "231 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697044 ], "weight": 2, "year": 1959, "pin_cites": [ { "parenthetical": "Supreme Court, considering appellant's arguments on appeal, remanded the cause for further proceedings and evidence to determine whether the trial court's enjoinder of a noisy chicken plant between 9:00 p.m. and 7:00 a.m. was correct." }, { "parenthetical": "Supreme Court, considering appellant's arguments on appeal, remanded the cause for further proceedings and evidence to determine whether the trial court's enjoinder of a noisy chicken plant between 9:00 p.m. and 7:00 a.m. was correct." } ], "opinion_index": 0, "case_paths": [ "/ark/231/0094-01" ] }, { "cite": "384 S. W.2d 469", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1734346, 1734238 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/238/0929-01", "/ark/238/0795-01" ] }, { "cite": "238 Ark. 929", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734346 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/238/0929-01" ] }, { "cite": "252 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629965 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "196" }, { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ark/252/0194-01" ] }, { "cite": "258 Ark. 826", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621210 ], "weight": 4, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/258/0826-01" ] }, { "cite": "109 S.W. 519", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 3, "year": 1908, "pin_cites": [ { "page": "554" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "85 Ark. 544", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523304 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ark/85/0544-01" ] } ], "analysis": { "cardinality": 476, "char_count": 7437, "ocr_confidence": 0.819, "pagerank": { "raw": 7.278780742269659e-08, "percentile": 0.4333333719456231 }, "sha256": "993a048ba6dc5e0da226f7e2bfac0406c8dcd809d2c6dec316ae0e722898d559", "simhash": "1:c3ea821a404c976e", "word_count": 1192 }, "last_updated": "2023-07-14T21:14:39.423771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., and Corbin, J., agree." ], "parties": [ "Tommy HIGGS and Patricia HIGGS v. Virgil ANDERSON et al." ], "opinions": [ { "text": "Tom Glaze, Judge.\nThis appeal ensues from the trial court\u2019s enjoinder of the appellant\u2019s outdoor dog kennel business operation finding it a nuisance which would ultimately devalue appellees\u2019 properties. After the trial court enjoined their kennel operation, appellants, by motion, offered additional testimony supporting a proposition to reconstruct the kennel to eliminate any nuisance its operation caused. The trial court refused to consider appellants\u2019 testimony, stating that they could and should have presented such testimony at the earlier hearing. Here, appellants argue the trial court erred (1) in finding the evidence sufficient to show the kennel\u2019s operation devalued appellees\u2019 properties and (2) in refusing the testimony offered by appellants to show how they would eliminate any nuisance.\nAppellants\u2019 argument for their first point is framed much too narrowly because whether appellees suffered a financial or property depreciation loss is not the sole issue. In fact, the Supreme Court in Durfey v. Thalheimer, 85 Ark. 544, 109 S.W. 519 (1908), recognized the general rule that a mere diminution in value of property, which can be fully and readily compensated in damages, will not supply grounds for an injunction, and the parties will be left to the redress afforded by an action for damages. After stating this rule, the court concluded:\nBut, while this is true, it by no means follows that interference with the enjoyment of the property will not furnish grounds for relief by injunction, although the property itself may sustain no physical injury whatever. The right to enjoy property is as much a matter of legal concern as the property itself.\nId. at 554, 109 S.W. at 522.\nThus, for the appellants to prevail, we must decide the broader issue: Whether the appellants\u2019 operation of their commercial, outdoor kennel was constructed or conducted in a manner that destroyed the comfort of persons owning and occupying adjoining premises, and therefore should be abated as a nuisance. See Baker v. Odom, 258 Ark. 826, 529 S.W.2d 138 (1975). Our Supreme Court has defined a nuisance as an interference with the use and enjoyment of land including conduct on property disturbing the peaceful, quiet and undisturbed use and enjoyment of nearby property. Arkansas Release Guidance Foundation v. Needier, 252 Ark. 194, 477 S.W.2d 821 (1972). Equity clearly will enjoin conduct that culminates in a private nuisance in fact when the resultant injury to the nearby property and residents is certain, substantial and beyond speculation and conjecture. Id. at 196, 477 S.W.2d at 822. In the instant case, there is little dispute that a nuisance resulted from appellants\u2019 existing outdoor kennel. A large number of witnesses for appellees presented exhaustive proof to support the trial court\u2019s finding that the appellants\u2019 open-air kennel with barking dogs seriously and unreasonably interfered with appellees\u2019 peaceful arid normal enjoyment of their homes. Some of the relevant, supportive evidence presented by appellees can be gleaned from the following testimonial excerpts:\n\u201cI could hear the dogs from inside my house . . \u25a0\u2022. when my air conditioning was on.\u201d; \u201cWe planned to have a patio party for the little league ball team, and because of the noise [barking] and disruption we cancelled the party.\u201d; \u201cWe have changed our lifestyle in that we stay indoors now because of the noise.\u201d; \u201cIt just sounds like a war of dogs.\u201d; \"We do not use our yard since the dogs have come.\u201d; \u201cYesterday, they woke us up at 5:07 a.m. and continued to bark almost until the time we got to school.\u201d\nThe appellees also presented expert and lay opinion testimony that properties located near appellants\u2019 business have depreciated in value due to the noisy operation of the outdoor kennel. Furthermore, witnesses testified that they had declined to build homes in the area because of the kennel\u2019s operation. From our examination of the record, we cannot say the trial court\u2019s finding the kerinel a nuisance was clearly against the preponderance of the evidence.\nAppellants next argue that after enjoining its kennel business as a nuisance, the court should have granted their motion to present evidence on how they would eliminate the noise from the kennel. The trial court ruled that the case had been fully tried and in denying appellants\u2019 motion, it declared the evidence proffered by the appellants could and should have been presented earlier.\nAppellants argue they offered no evidence at the earlier hearing regarding plans to enclose or soundproof their outdoor kennel because they were denying that any nuisance existed in the first place. Appellants submit that tactically and strategically they were in no position to suggest they would \u201cnoise proof\u201d the kennel until after the trial court had determined the kennel operation should be enjoined as a nuisance. Appellants\u2019 foregoing arguments aside, we agree that the trial court granting the injunction in the first instance is always empowered to modify it. Young v. Young, 238 Ark. 929, 384 S. W.2d 469 (1965); see also Green v. Smith, 231 Ark. 94, 328 S.W.2d 357 (1959) (Supreme Court, considering appellant\u2019s arguments on appeal, remanded the cause for further proceedings and evidence to determine whether the trial court\u2019s enjoinder of a noisy chicken plant between 9:00 p.m. and 7:00 a.m. was correct.) Here, however, the trial court only enjoined the outside kennel operation; it did not proscribe the operation of an enclosed or indoor kennel. The court, in its findings, did say it was \u201cconvinced that the objectionable conditions cannot be eliminated by restrictions or changes in the manner of conducting the outside kennel.\u201d We do not read the chancellor\u2019s finding to mean the noise could not be eliminated by converting the kennel into an indoor facility. No one contends a dog kennel is a nuisance per se, and from our review of the record, the trial court enjoined only the appellants\u2019 outdoor kennel because of the noise and disturbance it caused adjoining neighbors. If appellants can eliminate that noise, their kennel would obviously no longer be a nuisance which required abatement.\nIn conclusion, while we agree with appellants that the trial court has continuing jurisdiction to modify the injunctive relief it granted, we find it was unnecessary to do so here because the court enjoined only appellants\u2019 outdoor kennel operation, not their existing or proposed indoor kennel(s).\nAffirmed.\nCracraft, C.J., and Corbin, J., agree.\nThe appellants also operate an indoor kennel used for grooming small dogs, but the trial court found no proof that this part of appellants\u2019 operation constituted a nuisance.\nIn Baker v. Odom, 258 Ark. 826, 529 S.W.2d 138 (1975), the Supreme Court affirmed the trial court\u2019s enjoining of appellants\u2019 operation of a motorcycle dirt track but refused to uphold the lower court\u2019s order which prevented appellants from developing an automobile track. However, the Supreme Court cautioned appellants that in developing plans for an automobile track they did so at their own risk because a complainant is free to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance.", "type": "majority", "author": "Tom Glaze, Judge." } ], "attorneys": [ "B. Michael Easley, for appellant.", "W. Frank Morledge, for appellee." ], "corrections": "", "head_matter": "Tommy HIGGS and Patricia HIGGS v. Virgil ANDERSON et al.\nCA 84-225\n685 S.W.2d 521\nCourt of Appeals of Arkansas Division II\nOpinion delivered March 6, 1985\nB. Michael Easley, for appellant.\nW. Frank Morledge, for appellee." }, "file_name": "0113-01", "first_page_order": 135, "last_page_order": 139 }