Opinion
March 21, 1930.
April 14, 1930.
Equity — Injunction — Nuisance not per se — Undertaking establishment — Nuisance — Zoning ordinance — Appeals.
1. The appellate court will sustain a decree dismissing a bill in equity filed to restrain the maintenance of an undertaking establishment in a residential neighborhood, where the court below, on sufficient evidence, finds that while the original intention of the defendant had been to maintain a full undertaking establishment at the location in question, it had been modified, and all embalming done by defendant was done at another place owned by him, some considerable distance from the premises with regard to which complaint was made, and that defendant's use of the property in question did not constitute a nuisance.
2. In such case, in the absence of a showing that the use of the premises was per se a nuisance, equitable relief could not be invoked by a private person merely for the purpose of preventing the violation of zoning ordinances.
Argued March 21, 1930.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
Appeal, No. 96, March T., 1930, by plaintiffs, from decree of C. P. Allegheny Co., Oct. T., 1929, No. 741, dismissing bill in equity, in case of Thomas E. McCann et al. v. John J. McCabe. Affirmed.
Bill for injunction. Before PATTERSON, J.
The opinion of the Supreme Court states the facts.
Bill dismissed. Plaintiffs appealed.
Error assigned, inter alia, was decree, quoting record.
Martin Croissant, for appellants.
J. Howard Devlin, with him James F. Kane, for appellees.
Plaintiffs asked that defendant be enjoined from maintaining an undertaking establishment in a residential neighborhood where they reside. After hearing on a bill and answer, the court below found that, while the original intention of defendant had been to maintain a full undertaking establishment at the location in question, it had been modified and all embalming done by defendant was done at another place owned by him, some considerable distance from "the premises regarding which complaint is made"; further, that defendant's use of the property in controversy did not constitute a nuisance; finally, in the absence of a showing that "the use of the premises is per se a nuisance, equitable relief [could] not be invoked [by private persons] merely for the purpose of preventing a violation of zoning ordinances." The findings of fact and correct conclusions of law by the court below fully sustain the order dismissing plaintiffs' bill.
The order is affirmed at cost of appellants.