# Powell v. Taylor > Supreme Court of Arkansas · January 11, 1954 · 222 Ark. 896 URL: https://www.frixlaw.com/law-library/cases/9638322 ## Case - **Full name:** Powell v. Taylor - **Court:** Supreme Court of Arkansas - **Decided:** January 11, 1954 - **Citations:** 222 Ark. 896; 263 S.W.2d 906; 1954 Ark. LEXIS 796 - **Precedential status:** Published - **Opinion:** Dissent by Millwee - **Judges:** George Rose Smith - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638322 ## Opinion text Minor W. Millwee, Justice, dissenting. As I read the opinion of the majority, it is now the law in Arkansas that the operation of a modest undertaking parlor in a mixed residential and business area of a city of the second class constitutes a nuisance per se and may be abated as such by injunction. This holding is so foreign to the traditional attitude of this court and the general legislative policy of this state that I must respectfully dissent. While the majority conclude that the area in question here is “essentially” residential, they proceed to apply the so-called “modern rule,” which is, in those jurisdictions which recognize it, only applicable when the affected area is “exclusively” or “purely” residential. Since this goes far beyond any of the authorities cited by the majority, I suppose it should be dubbed the “ultra modern rule. ” It is perfectly apparent from the detailed description of the majority that the area affected here is a mixed commercial and residential one and that the chancellor was eminently correct in holding that it was not “exclusively” residential. This determination by the chancellor is in my opinion fully supported by the great preponderance of the evidence. Moreover, the majority failed to mention the fact that appellees’ contemplated operation does not include the holding of funerals or the maintenance of noisy ambulances — factors which usually accompany the operation of a funeral home. Nor does the instant case contain factors presented by the proof in the cases relied on by the majority, such as the escape of noxious odors, the depreciation of values in surrounding properties, the ability of neighbors to see the taking in or carrying out of bodies or that they will be rendered more susceptible to contagious diseases. On the contrary, it is undisputed that the structure planned by appellees will greatly improve the beauty of the neighborhood, that there will be no noise from ambulances and no escape of odors or gases. It was further shown that within a radius of two blocks from appellees’ property there is a nursing home, a dentist office, a real estate office, a lumber office, a seamstress place of business, service station, boat factory, lumber company office, church and a hospital. Two blocks away is the business district on Highway 53, and three and a half blocks away is a bulk gas plant. This could hardly be called a purely residential section. In denying an injunction, the able chancellor stated in the decree: “The rule is well settled that no injunction should be issued in advance of the construction of a legal structure, or in advance of the operation of a legal business, unless it be certain that the same will constitute a nuisance; and, where the claim to relief is based on the use which is to be made of a lawful business, the Court will ordinarily not interfere by injunction in advance of actual operation. “Since the funeral home in the instant case is not a nuisance per se and may be operated in such a manner as to not become a nuisance, the rule that Chancery Courts will not issue an injunction in advance of actual operation, but will leave the complainants to assert their rights thereafter, if the contemplated use results in a nuisance, is applicable and controlling in the case at bar. ’ ’ Under our decisions it is difficult to see how the trial court could have reached any other conclusion. The rule which he declared has been consistently applied in numerous cases involving most every character of lawful business or operation. Among these are: a livery stable, Durfey v. Thalheimer, 85 Ark. 544 , 109 S. W. 519 ; a cotton gin, Swaim v. Morris, 93 Ark. 362 , 125 S. W. 703 ; a filling station, Fort Smith v. Norris, 178 Ark. 399 , 10 S. W. 2d 861 ; a cemetery, McDaniel v. Forrest Park Cemetery Co., 156 Ark. 571 , 246 S. W. 874 ; a hide and fur business, Fort Smith v. Western Hide and Fur Co., 153 Ark. 99 , 239 S. W. 724 ; an ice plant, Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038 , 294 S. W. 38 ; a tuberculosis sanatorium, Mitchell v. Deisch, 179 Ark. 788 , 18 S. W. 2d 364 ; a quarry and rock crusher, Jones v. Kelley Trust Co., 179 Ark. 857 , 18 S. W. 2d 356 ; a tabernacle, Murphy v. Cupp, 182 Ark. 334 , 31 S. W. 2d 396 ; a sawmill, Eddy v. Thornton, 205 Ark. 843 , 170 S. W. 2d 995 ; a bowling alley, Kimmons v. Benson, 220 Ark. 299 , 247 S. W. 2d 468 . In the McDaniel case, supra, we adopted the following as a well settled rule: “The unpleasant reflections suggested by having before one’s eyes constantly recurring memorials of death is not such a nuisance as will authorize the intervention of equity. ’ ’ In the Kimmons case, supra, we reaffirmed the rule that we would decline to enjoin the erection of a lawful business structure where there is a doubt that it would prove to be a nuisance. Certainly appellees are entitled to the benefit of that doubt by the great preponderance of the evidence in this case. About the only businesses or operations which this court has seen fit to enjoin as nuisances per se are: a gaming house, Vandeworher v. State, 13 Ark. 700 ; a bawdy house, State v. Porter, 38 Ark. 637 ; and the standing of a stallion or jackass within the limits of a municipality, Ex parte Foote, 70 Ark. 12 , 65 S. W. 706 . To this select group must now be added the operation of a modest undertaking parlor, where no funerals are to be held, in an area of a city of the second class which is “essentially” but not “actually” or “exclusively” residential. It should be a matter of common knowledge that there are scores of undertaking establishments located in residential, or mixed residential and commercial, areas of the smaller municipalities in this state with hundreds of thousands of dollars invested in them. Under the rule proclaimed today these enterprises are placed in a most precarious position. And in the future many citizens, such as the appellees, will be denied the privilege of pursuing a dignified and lawful calling in places where their services would be highly welcome and most sorely needed. I cannot agree to this rule. Justice McFaddin joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638322. Public record. Not legal advice.