Mergenschroer v. Ashley

Conley Byrd, Justice. Appellants Pete C. Mergen-schroer et al appeal from a chancery decree refusing to enjoin appellee Gerald Ashley’s operation of Jo-Jo’s Bar-B-Que at 3401 Parker Street, North Little Rock, as a nuisance, and refusing to cause appellee to remove as an obstruction that portion of his barbecue pit that extended into the street right-of-way. For reversal appellant relies upon the following points: I. The Chancellor erred in holding that the North Little Rock Board of Adjustment was empowered to allow and approve defendant’s building his structure into the public right-of-way. II. The Chancellor erred in refusing or declining to order the defendant to remove that part of the structure known as Jo-Jo’s Bar-B-Q which extended into the street right-of-way. We do not reach the alleged error of the trial court in holding that the North Little Rock Board of Adjustment was empowered to allow and approve appellee’s building of the encroachments on the street, because appellants have failed to show any special damages which would entitle them to enjoin the encroachments. The record shows that the dedicated street right-of-way is 50 feet; that the paved or traveled portion of the road comprises some 25 or 30 feet; and that appellants readily recognize that they could not drive on the 8 or 9 feet of the dedicated right-of-way obstructed by the barbecue pit. In Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S. W. 2d 35 (1956), we held that before one could abate an encroachment upon a public street he must show special damages not common to the public at large. Here the encroachment shown is not on any portion of the street which appellants propose to use and because of their failure to show any special damages from the encroachments not suffered by the public in general, we find their contentions to be without merit. Affirmed.