ARK. ] CLARK V. HUNT: 865 4-019' ; , • OPiniOn 'delivered June 15,. 1936,. • Automodmes . Noism4'ci. ‘ sirice eveky . 'pesbn . . , rhake driY • ful 'Use : of ' his oWii 'property WhiCh 'does 'not inteifere . With' 'ari-• ' other's .lawful right tO ; use :and 'enjoy hiS • property, the ereetion of a: filling-stitiOn Which is not a,.nuisance: per se will not , be enjoined, where, the, ' ,evidence , 'fails to, show . that , it ill constitute . nuisanc • e , ;. i , n fact: <•• .. ; .;.;,' • ,;•;-:, ' ApPeal; from ; Chicot ' Chancery' Coiirt; ; V: Ham-m . o ck, Chancellor ;: affirthed.. !. --•': .; • • • ' • • E . P.." Tdithii" and 17,6;§e; i • Hemilipkciy, :Chnti-911 Loughborougk * ' " ' • ' Chedirs ) : for- appellees. • ' • • J:. -Appellants, .as trustee's : Of Lake. Village llaptist : Church;lfroukht . this Suit against; appellees to re f-strain the • erection Of a 'filling ... station for i the ;sale .of arid 'gas and : autothobile accessories ; in Lake Village : near that• church:' • Whatis'idio • -wri as •the ' Old' town; ; 'Lake Village was surveyed and' platted to front beautiful Lake Chicot;:alorig the bank of Which run§ a street called Lake ShOre Drive: . • This frOntage Was -.divided into lots, but not into' blocks, • • :Kahl, : 'Jackson,. Washington ; and 'other Streets , run, at-right : angles, into Lake Shore Drive,- and, in connection , With • other; streets ram-Ling , parallel to .Lake ShorO . Drive,' *divide :the . Old- town into bloCks;:: although they were not nUmbered as blocks or- so called. H• .•! Lake Shore Drive became and is a part Of State arid federal ;highway .. NO. •'65,: which is 'One . ; of the.'principal• highways in . the State; and , probably 'the longest in • the State, 'as it ,extends •diagonally from...the . northwest.to the southeast corner 'Of 'the . State: • It' is proposed .to a: filling• ;station on lot .50, ;whicl y fronts: on highways :65. The ; church is located. bit lot . 65, which; also . fronts highway • 651* • TheSe . lots are . . separated: by Washington, ia street , 40: feet Wide., ;Each . of theseilbts haS :a; frontage on highwaY , 65..of 104.5 f eet.• • . :.; The church rie* and beautiful buildingy and its officers- and Others: testified that; it had beeri:-built to re•-. place another church building-adjacent to a; fining:station,
866 CLARK V. HUNT. [192 and that the present church site had been selected because there was no filling station..near it. They also testified that the proposed filling *station would , be annoying to persons attending *religious serVices . iiri, ,the . church, and for this reason„ would , constitute .,, a nuisance if erected. There . was no testimony, hoWever,that,,this, filling. station would be operated . in any:,,manner different , from• that of the ordinary properly . conducted station. A prOPosal to clOse the filling station On Sunday§ during the hours of religious services, made to placate the 'objeCtors to the erection; of , the filling , station, was rejected., . Other testimony was offered to the . effect that, the . station, .if erected, would not; or, % should not,. annoy 'persons as-i sembled in the Church for religious ,worship.. The decree, denying. the. .relief prayed, -contains recitals of fact which.are decisive of, the case.i, The : following finding , of,, fact appearing; in .,the decree is not :only not' contraryt ;to; a ,preponderance. of the testimony,. but appears tn,accord with the undisputed ' testimony.: " The site Upon, which ,it is ,proposed to erect -the' service :station lies. directly. across:Washington street,: and if constructed would stand, some 100 feet distant from the church build= ing, and on 1ot 50, according to ,the map above . treferred to.: • It: would . front on highway,.•65 and ex.tend, some distance, west:along the south side .Of . said -Washington street. This street: seems.. to ,be, and; is,: the, ;north ;boundary of that . , block, of, . business, property forming' the 7 north ;side of Court S4u6re, thence it :is within the business ,district of the city.!'. ' i• . • *! • • An:old 'resident of LakeVillageitestified that in •the early . daYs , of the 'town ' its first -stores: :were-on the :lot where .the mew BaptiSt Church now stands.and 9n the lot where it is proposed to build the , Another citizen—the 'first mayor . of :the town after, its. incorporation—testified that the , ldt on' which' Mrs. Bunt one *of the' appellees) prOposes , -building the fillMg : station .is on. the block adjoining , cotrt 'sqUare it'where the, county courthouse is located, and on , north' Lake Sl'Iore Drive, and 'halfi of the , bloCk is now filled with brick bnsiness buildingS÷ L theyLake' Shore Hotel,' Chicot 'Spectator (a newspaper: And printing plant) :, : and an . old picture show
ARK.] CLARK . V. HUNT. • „ 867 building and offices in the.rear, Which recently • were remodeled for the General American -Farms. • 0 , • Among the cases Cited .and relied upon for the .re-versa" of the decree here appealed from is that of Hud-. dleston v. Burnett,.172 Ark. 216,• 287 S. W; 1013. There the erection of a filling station and garage Was enjoined in what was said to * be distinctively a residence -section located some five or six blockS away.from the- business . It- was• there • said that. a , filling station and public garage is a laWful business, and not a. nuisance per se, but that the erection and operation of a filling station and 'public : garage`in'a residential district which woUld result in creating incessant-noise in- the neighbor, hood woUld be• enjoined. • • -0 • • Here it is proposed to erect a . filling- station, but'not a-ritiblic garage, 'and- the 'proposed site' muSt be 'Said, as was found by the court below, to be in the business district' of "the 'city, altheugh it is adjacent to • a church: The testimony shows that after a railrOad entered Lake Village the business section grew away from the lake front and towards the railroad depot, and that the church and the 'proposed site of the • filling 'station lie in what is now the outskirt of , the business district, as there are no business house's' herth Of them fronting the Lake Shore Drive dr highway :65.• But these.sites are still in the business district of the town; . The principal business section of the. town .is the portion ,adjacent to and ,near the• courthouse, which -building -is across the street from theleading hotel, which is adjacent:to lot 50. • ••• There apPears fo be no controversy aboUf the law of the case, which bas been frequently ,declared by.this and• other courts. A recent case reviewing earlier cases of similar purport is that of . Moere v. Wa2lis,.191 Ark. 551, 86 S.'W. (2d)4111, where. deelarations of law were made to. the . follOwing effeet; . ..EVerY 'person may make any lawful use of his oWn prOrierty'which 'does not interfere with another's lawful right to use and enjoy his own property. A nuisance at law or' a nuisance per se is an act, occupation, or structure which is, a 'nuisance at all times and under all circumstances, regardless of location or surroundings: . The erection .of a .filling ,station
.868 [192 and garage. is not a •nuisance . per. se , and When an injunction is sought merely . on the greund• that a lawful orec-tion will be put to a..use• that will constitute , a .nuisance the Court will ordinarily refuse to .restrain the Construction of the erection,' leaving. the coMplainant• free to as-. sert • his rights. thereafter: in :an appropriate manner; •if the , contemplated use results in a nuisancC.. It was there further :held thatas. a. filling.'station . was not a .nuisance `per ,erection would hot be• enjoined Where the evidence' fails :to show. that the ..statiOn will constitnte a nui .sa. nce 'in fadt. • •• . ; ;.. • So, here; •the•prOposed filling station not ,being a nuisance per sa, its erection and operation will not,be enjOined unless it shall be so operated as to beCome a nuisance fact ,.Many cases i point, are cited .in the notes to §§ 488 . 1,. 4882. and..490,1, B1asbfie . 10. : Encyc1opedia. Automobile Law:, ,;: . The decree .of tho,court below is correct; and.is ,there, fore ;affirmed. •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.