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Mergenschroer v. Ashley
Citations: 244 Ark. 1238; 429 S.W.2d 120; 1968 Ark. LEXIS 1487Docket: 5-4603
Court: Supreme Court of Arkansas; June 3, 1968; Arkansas; State Supreme Court
Appellants Pete C. Mergen-schroer et al challenged a chancery decree that denied their request to enjoin Gerald Ashley's operation of Jo-Jo’s Bar-B-Que as a nuisance and to remove a portion of the barbecue pit that extended into the public street right-of-way. The appellants argued that the Chancellor made two errors: first, in affirming that the North Little Rock Board of Adjustment had the authority to permit the construction into the public right-of-way; and second, in refusing to order the removal of the encroachment. The court did not address the first alleged error regarding the Board of Adjustment's authority. Instead, it focused on the appellants’ failure to demonstrate any special damages resulting from the encroachment, which is a prerequisite for abating such a nuisance. The record indicated that the dedicated street right-of-way is 50 feet wide, with 25 to 30 feet paved. The appellants conceded that the obstructed area of 8 or 9 feet did not affect their ability to use the road. Citing precedent, the court emphasized that to abate an encroachment on a public street, one must prove special damages that are not shared by the public at large. The court concluded that the appellants' claims lacked merit and affirmed the lower court's decision.