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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 17,6e; 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 citizenthe 'first mayor . of :the town after, its. incorporationtestified 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; theprOposed 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.
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