concurring in part, dissenting in part.
I agree with the majority that the circuit court did not abuse its discretion in refusing to instruct the jury on the two jury instructions proffered by Ludwig.
However, I disagree with the majority that the circuit court erred in submitting the nuisance issue to the jury for determination. After the jury’s verdict that a nuisance was ongoing, the judge determined that injunctive relief was warranted. This procedure was appropriate in my judgment for several reasons.
First, common law nuisance has traditionally been a cause of action submitted to the jury. See, e.g., McLean v. City of Fort Smith, 185 Ark. 582, 48 S.W.2d 228 (1932) (holding that when facts establishing nuisance are in-dispute, the court should submit the question to the | injury). In the instant case, the court instructed the jury as follows: “A nuisance is conduct by one landowner that unreasonably or unlawfully interferes with the use and enjoyment of the lands of another and includes conduct that disturbs the peaceful, quiet and undisturbed use and enjoyment of nearby property.” The jury found that this fact had been established.
Second, the case of First National Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005), is not controlling. In Cruthis, the error was not the submission of unjust enrichment for a jury decision but rather allowing the jury to decide whether the remedy of an equitable lien should be imposed.
Thus, although unjust enrichment is an equitable cause of action, because it is based on the alleged breach of an implied contract, it may be heard in circuit court and may be heard by a jury. However, we must reverse because restitution was not the only equitable remedy sought in Count 1. FNB also sought an equitable lien on certain property. An equitable lien is a right to have a demand satisfied from a particular fund or specific property. An equitable lien has also been defined as a remedy that awards a nonpossessory interest in property to a party who has been prevented by fraud, accident or mistake from securing that to which he was equitably entitled. An action on an equitable lien was historically heard in chancery court because it is an equitable remedy. Because an equitable lien was sought, the circuit court erred in submitting Count 1 to the jury, and because we reverse on this basis, we need not address the remaining issues.
Cruthis, 360 Ark. at 537, 203 S.W.3d at 94 (internal citations omitted). . In the instant case, the remedy of the injunction was not sought from the jury but from the judge. The jury merely found a nuisance to exist.
Third, both general law and Arkansas commentators support what the circuit judge did in this case. First, there is American Jurisprudence:
Although a jury trial may not be a matter of right, the chancellor in a case to abate a public nuisance may submit such issues of fact to the jury as he deems Inappropriate. It is proper to submit the question of the existence of a nuisance to a jury if the evidence is sufficient to raise the issue, and, in such a case, the jury should be properly instructed. However, while in some jurisdictions the existence of a nuisance may be determined by the verdict of a jury, such a verdict is merely advisory and may be accepted or rejected by the court.
58 Am. Jur. 2d Nuisances § 387 (2002).
Next, former Justice David Newbern and Professor John Watkins describe what the circuit judge did in the instant case as the preferable approach: “When a case with legal and equitable claims involves common questions of fact, the preferable approach is to try those questions to a jury, perhaps on written interrogatories as allowed by Ark. R. Civ. P. 49(a), before the court determines whether equitable relief is appropriate.” 2 Ark. Civ. Practice & Procedure § 29:3 (5th ed. 2010).
For all of these reasons, I would affirm on the nuisance issue as well.