{ "id": 1869702, "name": "Larry G. MILLIGAN v. GENERAL OIL COMPANY, INC.", "name_abbreviation": "Milligan v. General Oil Co.", "decision_date": "1987-11-02", "docket_number": "87-151", "first_page": "401", "last_page": "411", "citations": [ { "type": "official", "cite": "293 Ark. 401" }, { "type": "parallel", "cite": "738 S.W.2d 404" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "740 S.W.2d 908", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": -1 }, { "cite": "267 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719779 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/267/0123-01" ] }, { "cite": "228 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721682 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/0495-01" ] }, { "cite": "38 N.M. 361", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559114 ], "weight": 3, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0361-01" ] }, { "cite": "260 La. 384", "category": "reporters:state", "reporter": "La.", "case_ids": [ 9751450, 3277235 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/so2d/256/0127-01", "/la/260/0383-01" ] }, { "cite": "56 S.W. 1111", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1935, "opinion_index": 0 }, { "cite": "191 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "year": 1935, "opinion_index": 0 }, { "cite": "228 Ark. 592", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722828 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/0592-01" ] }, { "cite": "143 S.W. 1087", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1912, "opinion_index": 0 }, { "cite": "102 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354036 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ark/102/0287-01" ] }, { "cite": "252 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629965 ], "weight": 4, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0194-01" ] }, { "cite": "284 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878672 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0042-01" ] }, { "cite": "280 Ark. 477", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744826 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/280/0477-01" ] } ], "analysis": { "cardinality": 890, "char_count": 16445, "ocr_confidence": 0.896, "pagerank": { "raw": 2.971907535902872e-07, "percentile": 0.850351120856853 }, "sha256": "2bfbb7e78b4226cc4effb1a5bb96632fdf4b880913bcbd3159eff4438b35b558", "simhash": "1:31ec0665e2221bda", "word_count": 2903 }, "last_updated": "2023-07-14T18:33:58.592079+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman and Hays, JJ., concur in part and dissent in part.", "Glaze, J., agrees with majority on direct appeal but concurs with results reached on cross-appeal.", "Purtle, J., dissents.", "Hays, J., joins." ], "parties": [ "Larry G. MILLIGAN v. GENERAL OIL COMPANY, INC." ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nAt issue in this action is whether the appellee\u2019s above ground gasoline storage tanks constitute a nuisance.\nAppellee General Oil Company, Inc. (\u201cGeneral Oil\u201d) operates a convenience store/gasoline service station, in a predominantly commercial location approximately five miles south of Batesville. The business fronts on the east side of Highway U.S. 167 in the community of Southside. There are several fuel pumps placed in front of the store and four above ground gasoline storage tanks with a total capacity of 21,000 gallons located approximately fifty-seven feet behind. The storage tanks have been in their present location for at least 14 years.\nAppellant Larry Milligan (\u201cMilligan\u201d) has operated a grocery store which is south of and adjacent to General Oil\u2019s location since 1983. His store also fronts Highway U.S. 167 and is located approximately eighty-one feet from General Oil\u2019s storage tanks. The ground slopes naturally downhill from the General Oil property to the grocery store property.\nOn April 17, 1986, Milligan filed suit in Independence County Chancery Court alleging that because of numerous incidents of fuel spillage, the storage tanks constituted a private and public nuisance. He asked for a permanent injunction to abate the alleged nuisance and for damages. In his decree on February 10, 1987, the chancellor found that the storage tanks did not constitute a nuisance or warrant an injunction. The chancellor awarded Milligan $1,000.00 as compensation for damages caused by the negligence of General Oil\u2019s employees in allowing fuel to escape into the grocery store parking lot and for the time and effort Milligan expended in cleaning up debris that General Oil had washed upon his land.\nFrom the judgment of the chancery court, Milligan appeals. General Oil cross-appeals on the ground that the trial court erred in awarding $1,000.00 in damages to Milligan.\nAlthough chancery court cases are reviewed de novo on the record, the findings of the chancellor will not be set aside unless they are found to be clearly erroneous. Ark. R. Civ. P. 52(a); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Since the question of the preponderance of the evidence turns to a large extent on the credibility of the witnesses, we should give deference to the chancellor. Under the circumstances, we cannot say the findings of the Chancellor were clearly erroneous.\n\u201cNuisance is defined as conduct by one landowner which unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.\u201d Ark. Rel. Guidance Fdn. v. R. J. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972). \u201cEquity will enjoin the conduct which culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture.\u201d Id. The distinction between private and public nuisance is simply the extent of the injury, i.e. the number of persons suffering the effects of the nuisance. Id.\nThe mere diminution in the value of property or of the business by the nuisance, without irreparable injury, will not furnish sufficient cause for equitable relief. Gus Blass Dry Goods v. Reinman, 102 Ark. 287, 143 S.W. 1087 (1912). \u201cThe nuisance must be of a consistent, recurring and permanent nature, and from such nuisance there must flow injuries causing substantial, tangible and material discomforts and inconvenience, which result in a loss of health, loss of trade, partial but substantial destruction of business or the ruin of property, and the deprivation of its use and enjoyment to a material and substantial extent, before a court of equity will interfere by injunction to restrain the maintenance of, or to abate the alleged evil.\u201d Id.\nIt is well settled that a filling station is not a nuisance per se. See Phillips v. Adams, 228 Ark. 592, 309 S.W.2d 205 (1958); Moore v. Wallace, 191 Ark. 511, 56 S.W. 1111 (1935). It has also been held that storage of fuel does not constitute a nuisance per se. Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1971). However, such storage may be a nuisance if it creates a substantial likelihood of fire or explosion in the future. See Phillips v. Allingham, 38 N.M. 361, 33 P.2d 910 (1934). The mere fear or apprehension of danger from fire or explosion due to the existence of gasoline storage tanks does not, in and of itself, justify injunctive relief. Id.\nSince storage tanks cannot be considered a nuisance per se, the burden is upon the complaining party to show that it is a nuisance in fact by clear and satisfactory evidence. Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824 (1958). Whether or not General Oil\u2019s storage tanks constitute a nuisance is largely a question of fact. Phillips v. Adams, supra. The chancellor held that the mere fear of apprehension of danger from fire explosion due to the existence of gasoline storage tanks without more is not sufficient to justify an injunction and that it is necessary to show a reasonable certainty that such results are actually threatened, rather than merely anticipated. We agree. The storage tanks have been in their present location for at least 14 years. Interruption to Milligan\u2019s business caused by gas spills or other activities has been infrequent and temporary in nature. Likewise, General Oil has been in substantial compliance with the rules and regulations of the State Fire Marshal\u2019s Office pertaining to above-ground storage tanks, and there is no substantial proof that General Oil\u2019s activities resulted in pollution. In short, the proof does not support the claim that General Oil was using its property in an unreasonable, unwarranted, or unlawful manner. Injunctive relief is not warranted by the circumstances.\nOn cross-appeal General Oil contends that the chancellor erred in awarding Milligan $1,000.00 in damages in that the record is void of any evidentiary basis for the award. We likewise agree. Under our law, a party seeking damages has the burden of proving his claim, and if no proof is presented to the trial court that would enable it to fix damages in dollars and cents, the court cannot award damages. Winkle v. Grand Nat\u2019l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).\nThe sole testimony on the issue was from cross-appellee Milligan:\nQ. What do you say your damages are?\nA. Well, I really can\u2019t put, I really can\u2019t put a dollar figure on it, you know, I mean, I just can\u2019t put a dollar figure on it.\nQ. Okay, in our complaint we listed $20,000.\nA. Right.\nQ. Are you asking the judge for that much money today?\nA. No, I\u2019m just asking to get part of my money back, you know, that I\u2019ve been out. I\u2019m not \u2014\nQ. You\u2019re asking the judge to reimburse you for your loss.\nA. Yes, sir, I would like to have that.\nQ. And for your time and labor of having to clean up the trash?\nA. Well, I\u2019d like to have that. It\u2019d be nice.\nQ. Right. And can you put an exact dollar figure on that?\nA. On \u2014 ?\nQ. Your loss of business?\nA. No sir, I sure can\u2019t.\nQ. But you don\u2019t have any doubt you\u2019ve lost some business?\nA. I don\u2019t have any doubt that I\u2019ve lost some, no, no doubt at all but I can\u2019t say how much, no.\nQ. You\u2019re willing just to leave it up to the judge?\nA. Yes, sir.\nThe only other evidence of damages is that Milligan repaved his parking lot. However, Milligan testified that the parking lot had been there for some time and the spilled gasoline did not cause all of the problem:\nQ. But it\u2019s your testimony and your contention that the occurrences in February of \u201984 and December of \u201984 and January 16th, \u201985 were the only reasons you had to have your parking lot repaved?\nA. No, Sir, I don\u2019t believe I said that.\nQ. Okay. What did you say?\nA. I said it caused certain areas, you know to come up there. I\u2019m not saying it caused the 100 percent of it. Maybe the parking lot had been there. I\u2019m sure it had some damages already done to it, you know over the few years. I mean, I\u2019m not saying, no, that\u2019s what blowed up the whole parking lot, no. I didn\u2019t say that, but I did say it helped a lot to do that.\nQ. Are any of those incidences, those three incidences that occurred before you had your parking lot resurfaced, any of the ones you referred to when you said that raw product was running over your lot:\nA. Repeat that.\nQ. Let me ask it another way. Wouldn\u2019t it be fair to say that on all three occasions before you had your lot repaved, the product was washed off by the fire department, so it was mixed with water?\nA. I\u2019d have to look at those dates and see and get lined back up on which \u2014 they\u2019ve been so many I can\u2019t keep up with them.\nQ. Well, there were only three before you had your lot repaved.\nA. The diesel come across there, the one spill was before, it was raw diesel went across there.\nQ. That was when the pump was knocked over?\nA. Yes.\nQ. December 1st, 1984? And I think Mr. Candler testified, Arnold testified that these pumps were knocked over and they came out and washed the spill away? Do you remember that?\nA. I\u2019m not sure.\nQ. Do you remember back on November 24th when I took your deposition over at Mr. Ketz\u2019s office?\nA. Yes, Sir.\nQ. And do you remember me asking you about the status of your lot right now and how it looked?\nA. Yes, Sir.\nQ. And do you remember telling me, I asked you on page 45, \u201cWhat\u2019s the condition of your parking lot right now?\u201d And your answer was, \u201cTo look at it right now, it looks pretty good because it\u2019s packed.\u201d\nA. Yes.\nQ. Is that still your testimony, it still looks pretty good?\nA. Yes, Sir.\nQ. So, all these occurrences that have happened since you\u2019ve had it repaved, your lot still looks pretty good?\nA. Just to look at it, it looks fairly well. But I don\u2019t know how much breakdown to the oil, the contact in the gravel, I don\u2019t know how much it\u2019s broke down and I don\u2019t know how long it\u2019s going to last.\nQ. But it looks pretty good to look at it?\nA. To look at it, it look pretty good, but I don\u2019t know have much it\u2019s broke down.\nAs can readily be seen from the above quoted testimony, the chancellor could not have fixed damages with any degree of certainty. The damages were fixed only by sheer speculation. The chancellor erred in allowing Milligan $1,000.00 in damages. Therefore, we reverse this award on cross-appeal.\nAffirmed in part; reversed in part.\nHickman and Hays, JJ., concur in part and dissent in part.\nGlaze, J., agrees with majority on direct appeal but concurs with results reached on cross-appeal.\nPurtle, J., dissents.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Darrell Hickman, Justice,\nconcurring in part and dissenting in part. I agree with the majority\u2019s decision except for that part which strikes the chancellor\u2019s award of $1,000 damages. If one reviews a record backwards, that is, contrary to accepted principles of appellate review, one could perhaps conclude that the chancellor\u2019s finding was wrong.\nBut, our job is not to see if it was wrong; rather we look to see if there is any way to uphold it. We are bound to consider the evidence in a light most favorable to the appellee. E. I. DuPont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).\nThe appellee proved that it cost $4,600 to repave his parking lot. While spillage of gasoline and diesel fuel by the appellant did not cause all of this damage, undoubtedly it was the main cause of the parking lot\u2019s deterioration. The appellee testified as follows:\nI didn\u2019t say the occurrences in February, 1984 and December, 1984 and January 16, 1985 were the only reasons I had my parking lot repaved. I said it caused certain areas to come up there. I\u2019m not saying it caused 100% of it. I\u2019m sure it had some damages already. I\u2019m not saying that\u2019s what blowed the whole parking lot. I did say it helped a lot to do that. . . .\n* * * *\nThe defendants had to re-cover their parking lot after this fire incident. They re-covered their parking lot the same time, the same day I re-covered mine. That was on November 6, 1985. I covered it with hot mix. It is a two inch covering. Whoever did my lot, they did theirs the same date. I filled some, tried to repair it, to put some concrete in or, I bought some \u201ccold mix\u201d like they rework the highway with, that fills holes, but the water and stuff coming down through there just kept it spewed up all the time. I finally just sealed it. It was a while after I moved in and started running the grocery store that I did any work on the parking lot. After I had bought the store, it had one little hole in it. That\u2019s what I\u2019m talking about, refixing it. It wasn\u2019t any major cost like this was or anything. I didn\u2019t do anymore work to it until I had it resurfaced.\nI had some diesel running over it in December, 1984. It was about a year later in November, 1985, when I had it resurfaced. It just went to falling apart. After the spills went across it, I noticed it. I didn\u2019t notice it the next day. It\u2019s a pretty busy place. There is quite a lot of traffic. It just starts peeling a little. You\u2019re there working every day. You don\u2019t notice it. The first thing you know, you look out there and there\u2019s a big hole. I\u2019d say after the first spill, I started noticing it disintegrating about a month or two later. . .\nMark Lambert, an employee of the asphalt company that resurfaced the parking lot, testified as follows:\n... I think you would have to determine how long the diesel and gas were in contact with the hot mix. The longer it\u2019s on there, the more damage it\u2019s going to do. There is no question that diesel and gas would be detrimental to the hot mix. I would say within a year or so, you would know if any deterioration was to become obvious.\nThe diesel or gas dissolves and washes away tar in the hot mix, the asphalt cement.\nThe trial judge could easily have concluded that at least $1,000 of the cost of repaving was attributable to the negligence of the appellant. I would, therefore, affirm the award.\nHays, J., joins.", "type": "concurrence", "author": "Darrell Hickman, Justice," }, { "text": "John I. Purtle, Justice,\ndissenting. The majority has added insult to injury in my opinion. The facts clearly establish that the appellee oil company continues to maintain above ground oil storage facilities which do not meet the minimum safety standards of the State Fire Code. State Fire Marshal Ray Carnahan testified that since 1965 the Code has required that storage tanks for flammable liquids be placed underground. Testimony indicates these tanks were placed in their present above ground location sometime between 1970 and 1973. In any event, above ground tanks are required to have a dike large enough to contain the spill of the largest tank in the compound. The present concrete block retaining wall or dike does not meet the safety requirements of the Code for above ground storage tanks. The state fire marshal, after inspecting this dike stated: \u201cThere are cracks in the mortar joints. Some of the mortar has given way or dropped out \u2014 It needs to be bigger. It also needs to be repaired so there is not any cracks in the mortar.\u201d The fire marshal has referred this matter to the attorney general for appropriate action.\nThe local fire department has been called to the scene of these tanks at least nine times within a three year period. The danger of fire or explosion is ever present. Gasoline or diesel has overflowed onto the appellant\u2019s property several times. After one such overflow the appellant felt compelled to resurface his driveway and parking area at a cost of $4,500. The dike has constant seepage and there is trash and grass which could easily cause a fire. The public, including school children, are constantly in the area and some even sit on the dike while waiting for the bus or other things.\nI feel no need to set out in detail additional testimony and evidence which seems to me to compel reversal of this case. I feel confident the trial court was clearly erroneous in refusing to enjoin this nuisance which may well cause serious injuries or death or at least great property damage. The evidence was more than sufficient to support the damage award and most certainly required an injunction.", "type": "dissent", "author": "John I. Purtle, Justice," } ], "attorneys": [ "Hively & Ketz, by: Wesley J. Ketz, Jr., for appellant.", "Highsmith, Gregg, Hart, Farris & Rutledge and Wright, Lindsey & Jennings, for appellee." ], "corrections": "", "head_matter": "Larry G. MILLIGAN v. GENERAL OIL COMPANY, INC.\n87-151\n738 S.W.2d 404\nSupreme Court of Arkansas\nOpinion delivered November 2, 1987\nHively & Ketz, by: Wesley J. Ketz, Jr., for appellant.\nHighsmith, Gregg, Hart, Farris & Rutledge and Wright, Lindsey & Jennings, for appellee.\nJustice Hickman\u2019s concurring and dissenting opinion may be found at 740 S.W.2d 908." }, "file_name": "0401-01", "first_page_order": 437, "last_page_order": 447 }