{ "id": 1488253, "name": "Eddy v. Thornton", "name_abbreviation": "Eddy v. Thornton", "decision_date": "1943-05-10", "docket_number": "4-7072", "first_page": "843", "last_page": "847", "citations": [ { "type": "official", "cite": "205 Ark. 843" }, { "type": "parallel", "cite": "170 S.W.2d 995" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "31 S. W. 2d 396", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389780 ], "opinion_index": 0, "case_paths": [ "/ark/182/0334-01" ] }, { "cite": "110 S. W. 2d 1060", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718878 ], "opinion_index": 0, "case_paths": [ "/ark/195/0149-01" ] }, { "cite": "95 S. W. 2d 558", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 865", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415103 ], "opinion_index": 0, "case_paths": [ "/ark/192/0865-01" ] }, { "cite": "19 L. R. A., N. S. 174", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "112 S. W. 211", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "87 Ark. 213", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519135 ], "opinion_index": 0, "case_paths": [ "/ark/87/0213-01" ] }, { "cite": "109 S. W. 519", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "85 Ark. 544", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523304 ], "opinion_index": 0, "case_paths": [ "/ark/85/0544-01" ] }, { "cite": "130 S. W. 703", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "95 Ark. 545", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543629 ], "opinion_index": 0, "case_paths": [ "/ark/95/0545-01" ] }, { "cite": "125 S. W. 432", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 362", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546844 ], "opinion_index": 0, "case_paths": [ "/ark/93/0362-01" ] }, { "cite": "10 S. W. 2d 861", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 399", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396998 ], "opinion_index": 0, "case_paths": [ "/ark/178/0399-01" ] }, { "cite": "287 S. W. 1013", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "172 Ark. 216", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1407789 ], "opinion_index": 0, "case_paths": [ "/ark/172/0216-01" ] }, { "cite": "86 S. W. 2d 1111", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418512 ], "opinion_index": 0, "case_paths": [ "/ark/191/0551-01" ] } ], "analysis": { "cardinality": 500, "char_count": 8587, "ocr_confidence": 0.486, "pagerank": { "raw": 1.8416345723402554e-07, "percentile": 0.7222255042668511 }, "sha256": "7286802c2f58ac7669544ee2a4850468abaa839e6a5840d7778b0d8eb72222be", "simhash": "1:84f6cf5be83f2f88", "word_count": 1526 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Eddy v. Thornton." ], "opinions": [ { "text": "Holt, J.\nAppellants, L. C. Eddy and others (plaintiffs below), on December 2, 1942, brought suit in the 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.\nThe 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.\nThe 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 W.oodlawn Addition to the City of Hot Springs and that the operation of this machinery will be by steam power \u201cproduced, by the use of shavings and sawdust for fuel\u201d; that the \u201cnoise, 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\u201d; that their property would depreciate in value; that their erection and operation would constitute \u201ca danger and menace to the life and health of plaintiffs\u201d and \u2018 \u2018 constitute both a private and public nuisance. \u2019 \u2019\nAppellees filed \u201cmotion to dismiss\u201d appellants\u2019 complaints on the following grounds: \u201c1. 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 way of knowing oi\u2019 proving to this court that the said mill when in operation would become or be a nuisance in fact.\u201d\nUpon consideration of appellees \u2019\u25a0 motion to dismiss, the court permitted appellee, D. P. Thornton, to testify (quoting from appellants\u2019 brief): \u201cWe 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.\u201d 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, hut the court refused to hear this testimony and dismissed appellants\u2019 complaints for want of equity. To this action of the court appellants asked for and were granted this appeal.\nAppellants 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 he a nuisance per se.\nWhether the \u201cmotion to dismiss\u201d be treated, as such, or as a demurrer, the result would be the same.\nThe effect of appellants\u2019 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 he enjoined in advance of erection and operation.\nAs was said by this court in the comparatively recent case of Moore v. Wallis, 191 Ark. 551, 86 S. W. 2d 1111, \u2018 \u2018It is fundamental that every person has the right to own and enjoy property and to pnt it to any lawful use that may best subserve his interest or wishes so long as he does not trespass on his neighbors\u2019 rights. The maxim, \u2018Sic utere iuo ui alienum non laedas\u2019 limits the use thereof. This maxim means, according to Blackstone and Bouvier\u2019s Law Dictionary, \u2018So use your own as not to injure another\u2019s property.\u2019 The difficulty the courts have is in determining in advance whether the proposed use of the property will work injury to another. It has been held by this court that the operation of a filling station and garage is not a nuisance per se. Huddleston v. Burnett, 172 Ark. 216, 287 S. W. 1013. See, also, Ft. Smith v. Norris, 178 Ark. 399, 10 S. W. 2d 861. In 29 Cyc. 1153, a nuisance per se is defined as follows: \u2018A 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\u2019.\u201d And further on in the opinion the court quoted with approval the following headnote from Swaim v. Morris, 93 Ark. 362, 125 S. W. 432, 20 Ann. Cas. 930: \u201cWhere 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 to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance.\u201d The court further said: \u201cIn Cooper v. Whissen, 95 Ark. 545, 130 S. W. 703, where it was sought to enjoin the construction of a wagon yard at the corner of Bock and Fourth streets, Little Bock, the court held that such a structure was not a nuisance per se, and said: \u2018The structure for a wagon yard business is not any more a nuisance per se than is a building for a livery stable, a steam gin, a planing mill, a railway depot and the tracks connected therewith.\u2019 Citing Durfey v. Thalheimer, (85 Ark. 544, 109 S. W. 519) supra; Terrell v. Wright, 87 Ark. 213, 112 S. W. 211, 19 L. R. A., N. S. 174; Swaim v. Morris, supra; Lonoke v. C., R. I. & P. Ry. Co., supra. It was there further said: \u2018This court has recently held that it will not' enjoin the erection of a structure that is not a nuisance per se. Swaim v. Morris, supra. It lias also held that it will not demolish a structure by mandatory injunction nor prevent the prosecution of a business that is not per se or necessarily a nuisance.\u2019 . . . \u2018This court is in line with those cases, and they are numerous, which hold that ordinarily an injunction will not he granted unless the act or thing threatened is a nuisance per se. When it may or may not become a nuisance according to circumstances, or when the injury apprehended is doubtful or contingent, equity will not interpose in advance to prevent by injunction\u2019.\u201d\nThe above declarations of law, as announced in the' Moore-Wallis case, were reaffirmed in the case of Clark v. Hunt, 192 Ark. 865, 95 S. W. 2d 558. And, again, in Buchner v. Tillman, 195 Ark. 149, 110 S. W. 2d 1060, where it was held that the erection of a cotton gin was not a nuisance per se and might he operated in such a manner as not to become a nuisance, this court said: \u2018 \u2018 The general rule of law is that courts of chancery will not enjoin the erection of buildings to be used for conducting\u2018businesses not nuisances per se; or, to state it differently, courts of chancery will not enjoin the erection of buildings in which to conduct businesses that may he conducted or operated without becoming nuisances, in advance of the erection of the buildings. This court said in the case of Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396, that: \u2018The rule is well-settled that no injunction will be issued in advance of the structure, unless it be certain that same will constitute a nuisance\u2019.\u201d\nSo 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.\nFinding no error, the decree is affirmed.", "type": "majority", "author": "Holt, J." } ], "attorneys": [ "\u2022 Roy Mitchell, E. C. Thacker and James R. Long, for appellant.", "C. Floyd Muff, Jr., for appellee." ], "corrections": "", "head_matter": "Eddy v. Thornton.\n4-7072\n170 S. W. 2d 995\nOpinion delivered May 10, 1943.\n\u2022 Roy Mitchell, E. C. Thacker and James R. Long, for appellant.\nC. Floyd Muff, Jr., for appellee." }, "file_name": "0843-01", "first_page_order": 863, "last_page_order": 867 }