Cooper v. Whissen

Wood, J., (after stating the facts), x. The decree was final. It perpetually enjoined appellant from erecting the “building according to the plans shown by the defendant and the testimony.” That was the very building the erection of which appellees sought to enjoin. They were not seeking to enjoin the erection of any other kind of a structure than that specifically described in the complaint and shown by the testimony. They did describe the kind of structure that appellant was erecting and proposing to erect, and asked that he be enjoined from erecting same and from maintaining a nuisance therein such as was described in their complaint. Appellant was not proposing or proceeding to erect any other kind of a structure, or to maintain a nuisance in any other than that set forth in the pleadings and shown by the evidence, and it was the erection of this building that was enjoined. The building and inclosure in process of erection was to be used only for the purposes of a wagon yard, and the injunction necessarily prevented the maintenance of a wagon yard in that particular structure. The appellees obtained the relief they sought by the decree, and it was a final judgment on the issues presented, and therefore one from which an appeal could be prosecuted. 2. “A nuisance per se is a nuisance in itself, and which therefore can not be so conducted or maintained as to be lawfully carried on or permitted to exist.” Joyce on Nuisances, § 12. The 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. See Durfey v. Thalheimer, 85 Ark. 544; Terrell v. Wright, 87 Ark. 213; Swaim v. Morris, 93 Ark. 362; Lonoke v. Chicago, R. I. & P. Ry. Co., 92 Ark. 546. This court has recently held that it will not enjoin the erection of a structure that is not a nuisance per se. Swaim v. Morris, 93 Ark. 362. It has also1 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. Durfey v. Thalheimer, 85 Ark. 544. In the former case the facts stated in the complaint and admitted by the demurrer at least tended as strongly to show that the erection of the gin and the maintenance of the ginning business connected therewith would be a nuisance to the residents adjacent as does the evidence here, on behalf of appellees, tend to show that a structure for a wagon yard would be a nuisance to them. In that case we held that the erection of a' gin would not be a nuisance per se, and quoted from note to West v. Ponca City Milling Co., 14 Okla. 646; 79 Pac. 100; 2 Am. & Eng. Ann. Cas. 249, 254, as follows: “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.” This court is in line with those cases, and they are numerous, which hold that ordinarily an injunction will not be granted unless the act or thing threatened is a nuisance per se. “When it may or may not become a nuisance according to circumstances, dr when the injury apprehended is doubtful or contingent,” equity will not interpose in advance to prevent by injunction. St. James’s Church v. Arrington, 76 Am. Dec. 332, and other cases cited in appellant’s brief. “It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law.” 14 Enc. PI. & Pr. 1120; 29 Cyc. 1221. We see nothing in the record to make this case an exception to the rule announced in Swaim v. Morris, supra. The judgment is reversed, and the complaint is dismissed for want of equity.