Summary
In Smith v. Fairchild, 193 Miss. 536, 10 So.2d 172 (1942), the chancery court denied the injunction, but on appeal it was reversed and the injunction issued.
Summary of this case from Travis v. MooreOpinion
No. 35032.
October 19, 1942. Suggestion of Error Overruled December 14, 1942.
1. NUISANCE.
The extent of territory involved is only one factor in determining whether a section of city is of residential character, so as to entitle residents thereof to injunction against operation of undertaking and embalming establishment therein as a nuisance, but number, kind, value, and location of structures in such section, uses to which territory is adapted, and all surrounding facts must also be considered.
2. NUISANCE.
The location of an ice plant, gas station, and small grocery store, operated in connection with owner's home, within radius of 1,000 feet from undertaking and embalming establishment, did not change residential character of such section of city and hence did not preclude issuance of injunction against location and operation of such establishment therein.
3. NUISANCE.
The maintenance of an undertaking and embalming establishment in a residential section of city is unwarranted invasion of rights of persons residing in immediate vicinity thereof as substantially decreasing property values and destroying such persons' comfort and happiness and constitutes a "nuisance," against which they are entitled to injunction.
4. NUISANCE.
Persons disregarding written notice to them of protest against their establishment of funeral home in residential section of city by residents thereof, and failing to delay preparations for conversion of residential property into funeral home pending judicial determination of questions raised in such residents' suit to enjoin location and operation of undertaking establishment as nuisance, are in no position to complain of their loss of investment because of Supreme Court's issuance of injunction.
APPEAL from the chancery court of Forrest county, HON. BEN STEVENS, Chancellor.
George W. Currie and Luther A. Smith, both of Hattiesburg, for appellants.
We submit that the chancellor manifestly committed error in adjudging, as a matter of law, that the construction and operation of the ice manufacturing plant and the filling station removed the two blocks between Fifth and Seventh Streets from being a residential area within the meaning of the cases, including our own two Mississippi decisions, which have restrained and enjoined the operation of funeral homes in residential areas.
We submit that the courts do not require that a district be "an exclusive residential section" because granting injunctive relief against funeral homes, provided the peaceful and quiet enjoyment of other homes or the values of property in the vicinity are adversely affected. Some of the cases refer to such a neighborhood as a residential neighborhood, and others use the term, essentially residential. The area between Seventh Street and Eighth Street, where three of the complainants live and own separate homes on the same side of the street where the funeral parlor is located, is a totally and exclusively residential area, and we submit that within the meaning of the overwhelming weight of authority from other states, as well as the announcements of this court in two late cases, the remaining part of the area involved in this controversy, which is identified by the decree of the chancellor as being between Fifth and Seventh Streets, is likewise a residential area because it is not only found by the decree of the chancellor to have been a residential area before the establishment of the little ice plant and filling station, but it is abundantly shown by the record to be a part of the oldest residential section of the City of Hattiesburg, long occupied by some of its best known and most serviceable citizens and their families. It is further manifest that not only is the area between Seventh and Eighth Streets, which is vitally involved in this case, a residential area, but it is where the homes of at least three complainants, Phillips, Anderson, and Todd, are greatly disturbed and lessened in value, which alone would entitle the complainants to a perpetual injunction in this suit, regardless of whether the remaining area between Fifth and Seventh Streets has changed from an exclusively residential section into such a section as would lose its character as a residential section or not.
There are a large number of cases in various jurisdictions of the United States where suits have been filed, seeking to restrain and perpetually enjoin the location and operation of funeral homes in residential areas. Prior to 1925 the apparent trend of authority was against granting injunctions in such cases, but since that date the manifest course of authority is toward protecting residential areas, whether they are exclusively residential or not, provided they have not actually become business sections.
Williams et al. v. Montgomery et al., 184 Miss. 547, 186 So. 302; National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A.L.R. 91; Davis v. Holmes, 189 Miss. 554, 198 So. 25; Albright et al. v. Crim et al., 97 Ind. App. 388, 185 N.E. 304; Bevington v. Otte et al., 223 Iowa 509, 273 N.W. 98; Jordan v. Nesmith, 132 Okla. 226, 269 P. 1096; Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 43 A.L.R. 1155; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A, 825; Densmore v. Evergreen Camp, 61 Wn. 230, 112 P. 255, 31 L.R.A. (N.S.) 608, Ann. Cas. 1912B, 1206; Ross v. Butler, 19 N.J. Eq. 294, 97 Am. Dec. 654; Meldahl et al. v. Holberg (N.D.), 214 N.W. 802; Osborn v. City of Shreveport, 143 La. Ann. 932; Blackburn et al. v. Bishop et ux., 299 S.W. 264.
See also Dargan v. Waddill, 31 N.C. 244, 49 Am. Dec. 421; Coker v. Birge, 10 Ga. 336; County of Los Angeles v. Hollywood Cemetery, 124 Cal. 344, 57 P. 153, 71 Am. St. Rep. 75; Everett v. Paschall, 61 Wn. 47, 111 P. 879, 31 L.R.A. (N.S.) 827, Ann. Cas. 1912B, 1128; Cunningham v. Miller et ux., 178 Wis. 220, 189 N.W. 531-539, 23 A.L.R. 739; Street v. Marshall (Mo. Sup.), 291 S.W. 494; Brown v. City of Los Angeles, 192 P. 716.
The minority view, we think, is clearly stated in the case of L.D. Pearson Son v. Bonnie, 209 Ky. 307, 272 S.W. 375, but we cannot bring ourselves to agree therewith.
E.J. Currie, of Hattiesburg, for appellees.
The location of funeral homes has been the basis for much litigation, and has caused the expression of varying views by many different courts. Out of such a multitude of decisions a collation of those expressing the minority view seems formidable, and we deem it wholly unnecessary to cite all those authorities which announce the majority rule, upon which we prefer to rely.
None of the persons owning or occupying the properties or premises adjoining the funeral home objected in any manner to the location of the funeral home.
Without doubt an undertaking establishment is not a nuisance per se, even when located in a residence section of a city.
20 R.C.L. 455, Sec. 70.
Though not a nuisance per se, even when located in a residence section of a city, there are occasions when the operation of a funeral home may be abated, but whether such occasion exists or not is a question of fact depending upon the circumstances of each case, and the determination of such fact is for the determination of the trial court.
Whether a funeral home and embalming business will be permitted in a particular district depends on the "rule of reason," which means that each case must depend upon its own peculiar circumstances as to whether the use of certain property in a certain locality for the business of undertaking and embalming is reasonable or unreasonable.
Moss v. Burke Trotti, Inc. (La.), 3 So.2d 281.
This honorable court has adopted and pursued the "rule of reason" and has affirmed the decisions of the trial courts and has permitted each case to stand upon its own peculiar circumstances.
Williams et al. v. Montgomery et al., 184 Miss. 547, 186 So. 302; Davis v. Holmes, 189 Miss. 554, 198 So. 25.
Collation of general authorities see: Marshall v. Dallas (Tex. Civ. App.), 253 S.W. 887; 20 R.C.L. 381, Sec. 2; 20 R.C.L. 382, Sec. 5; 20 R.C.L. 408, Sec. 25; 20 R.C.L. 410, Sec. 27; 20 R.C.L. 414, Sec. 30; 20 R.C.L. 415, Sec. 31; 20 R.C.L. 438, Sec. 53; 20 R.C.L. 439, Sec. 53; 20 R.C.L. 440, Sec. 54; 20 R.C.L. 455, Sec. 70; 20 R.C.L. 470, Sec. 85; 20 R.C.L. 473, Sec. 88; 20 R.C.L. 479, Sec. 92; 20 R.C.L. 480, Sec. 93; 20 R.C.L. 492, Sec. 106; 20 R.C.L., Secs. 28, 61; 46 C.J. 682, Sec. 56; Hilliard on Injunctions, Sec. 2, pp. 304, 305, 306, 307.
When the bill of complaint in this case was prepared, counsel for the complainants evidently undertook to bring his case within the facts of the case of Williams et al. v. Montgomery et al., 184 Miss. 547, 186 So. 302, because the bill alleges that Main Street is an exclusively residential district. The defendant took issue with that allegation, and the record shows, as we recall, that Main Street was not an exclusively residential street, but that there were approximately 139 business and commercial enterprises on Main Street, and that in fact Main Street was and is the principal business streets in the City of Hattiesburg, Mississippi. Counsel for the appellants undoubtedly knew the utter futility of trying to prove that Main Street was an exclusively residential street, and on the trial of the case an apparent effort was made to bring the case at bar within the facts of the case of Davis v. Holmes, 189 Miss. 554, 198 So. 25, by attempting to show that within an area of seven blocks surrounding the funeral home in question, such area was "exclusively or essentially residential." Such effort wholly failed, we submit, and the record shows that within an area of seven blocks there were not only the approximately 139 business and commercial enterprises on Main Street, but various other business, commercial and industrial enterprises, including a large ice manufacturing plant, which was operated not only during the day, but at night; the Meridian Fertilizer Factory; Hercules Powder Company; an automobile repair garage; Jefferson Davis School; Number Three Fire Hall; Hughes' Grocery Store; the Hattiesburg Compress Company; the American Oil Company, and the Texas Oil Company. As we construe the decree of the learned chancellor he held, and properly so, that the existence and long continued operation of the large ice manufacturing plant would alone prevent the area in question from being an exclusively or essentially residential area. As shown by the record and the decree in this case, the large ice manufacturing plant was not only located in the same area or district or neighborhood with the funeral home, but the large ice manufacturing plant was located directly across the street from the funeral home. We respectfully submit that the ice manufacturing plant in question puts this case in exactly the same category it would be in if the ice manufacturing plant had been another funeral home, because the principles of law governing the right to establish an ice manufacturing plant and a funeral home, even in an area that is exclusively or essentially residential, are exactly the same.
Bickley v. Morgan Utilities Co., 173 Ark. 1038, 294 S.W. 38-43; 46 C.J. 714, Sec. 205.
The fact that the neighborhood is devoted to offensive uses is to be taken into consideration in determining whether or not any wrong has been done.
20 R.C.L. 492, Sec. 106.
The trial court has applied the "rule of reason" in the instant case; the learned chancellor has let the case at bar depend upon its own peculiar circumstances as to whether the use of certain property in a certain locality for the business of undertaking and embalming is reasonable or unreasonable, and he has resolved the issue, a fact issue, in favor of the appellees. The decree of the trial court should certainly, we submit, be affirmed.
Argued orally by George W. Currie, for appellants, and by E.J. Currie, for appellees.
This is an appeal from a decree of the chancery court dismissing the bill of appellants to enjoin the location and operation by appellees of an undertaking and embalming establishment near the southwest corner of the intersection of Main and Seventh Streets in the northern part of the City of Hattiesburg, Mississippi.
Fairchild and Richard, appellees, purchased a property which for many years had been, and was then being, used and occupied as a residence, paying therefor $3,650. Immediately on learning of this and of the intention of appellees to convert the property into a funeral home, twenty-three persons, all residents, and some owners of homes, in that vicinity, served upon appellees written notice, dated September 21, 1940, protesting the establishment of the funeral home at this place, saying it was an exclusive residential section, and that the operation of such business would cause them much personal distress and property damage, and that if appellees persisted in their intention the objectors would resort to legal means to prevent it and protect themselves and their property. This, it appears, was after the actual purchase of the property by appellees but before any expenditures had been incurred in making changes and alterations in the property needed to make it suitable for use as a funeral home. However, appellees say it was after they had contracted to have the changes made. The date of that contract, the extent and manner and cost of the changes are not shown in the evidence. Appellees gave no heed to the notice, whereupon this bill was filed by fourteen such residents and property owners. By agreement, three dates were set for hearing the motion for a temporary injunction, but, for various reasons, the hearing was not had. The cause was heard on its merits December 6, 1940. In the meantime, appellees had continued with their remodeling of the building, and when the cause was heard had been operating the funeral home about thirty days. Final decree was rendered June 20, 1941.
The question for decision is whether the locality in which this funeral home is located is of such residential character as that the property owners and residents thereof have the right to enjoin its operation therein.
No map or plat of the area, or measurements, appear in the record, and it is difficult to be sure of accuracy by piecing together the oral testimony of the witnesses. However, this appears to be the background and the picture: Main Street runs generally north and south through Hattiesburg, and is the main highway entering it from the north. All other streets hereinafter mentioned run east and west and all cross Main at right angles, except that 6th Street approaching Main from the east, and Columbia Street approaching it from the west, intersect but do not cross Main. The east and west streets are named by numbers except Columbia, the numbers increasing from the business section north. Some three blocks south of the intersection of Main and 7th Streets (the funeral home being located one house removed from the southwest corner of that intersection), a railroad crosses Main Street. Near this point 4th Street also crosses Main. South of this is the business section. At the railroad crossing there are several commercial properties. The city blocks are some 450 feet long north and south — some perhaps longer. Therefore, the railroad crossing is about one thousand or more feet south of the funeral home. From this crossing north on the east side and facing Main Street, a distance of approximately half a mile, there are only private residences, except a church, which is some two blocks south of the funeral home, and an ice plant and a gasoline station, which are opposite the funeral home. From the railroad crossing north on the west side of and facing Main Street, there are residences, and only residences, for approximately three-quarters of a mile, except the funeral home. The residences on either side of Main Street appear to be about as closely located to each other as is usually the case in residential sections in municipalities of this size in Mississippi. West from the funeral home, along the east and west streets, a distance of several hundred feet, there are residences, and only residences, except that out some seven hundred feet on Columbia Street, which is between 5th and 7th Streets, a Mr. Hughes operates a small grocery store in connection with his residence, and about the same distance west on 5th Street is a city fire station. Going east from Main Street, along the east and west streets, are residences for a distance of one thousand to twelve hundred feet, and there are no commercial properties until the Gulf Ship Island Railroad is reached; thence across that railroad east is an industrial section of the City. Summed up: Within a radius of approximately one thousand feet in all directions from the funeral home, there are about one hundred and forty or more residences, which area includes a Baptist Church, the ice plant, gas station, and Hughes Grocery Store. The gas station has been so located about seven years; the ice plant about three. The plant building is forty by sixty feet and twenty feet high, does both a retail and wholesale business, and an addition thereto was either in the course of construction, or contemplated, when this trial was had. The proof further shows that this part of Main Street is an old residential section of Hattiesburg, and that the immediate vicinity of the funeral home is perhaps the oldest residential part of the City; the homes are valuable and many of the leading citizens live in the area in question.
After the institution of this suit, Mr. Fairchild purchased and moved into the residence immediately adjoining the funeral home on the north, and, about a week before the trial, Mr. Richard purchased the one adjoining on the south.
The undertaking establishment is equipped to render proper service for this type of business. It has four vehicles, including hearse and ambulance; shrouds and other burial clothing, caskets and coffins, for sale; a chapel for services; canopy and lowering devices, grass, and all equipment needed for interment of bodies. It also conducts a burial insurance department, in connection with which people go to and from the home.
It is necessary to further say that appellees have a contract with the authorities at Camp Shelby, a large military camp of the United States, located some eight to ten miles south of Hattiesburg, to conduct all funerals and render such burial services as may be needed for any and all persons at that Camp in the military service of the United States. It is shown that many thousands of soldiers are camped there — the exact number not stated — and that the camp is likely to be there a number of years, necessitating the holding of many funeral services at this home. One such service had been held when the cause was tried.
The proof further shows property damage and personal emotions and distress to the neighboring residents from the operation of this establishment, the details of which we will not recite, except to say that on the occasion of the military funeral the disturbance and distress in the community were unusual. The soldier had met a tragic death; his young widow and fifteen-month-old child and many soldiers were present; the military band played the funeral songs; the streets were blocked of all traffic. The services were held near noon and the excitement and emotions were so great that a number of people could not partake of the noon meal.
The chancellor found that the vicinity in question had been an exclusive residential section and would now be such except for the location of the ice plant and gas station across the street from the funeral home.
We think the conclusion of the chancellor as to the effect of the existence of the ice plant and gas station was erroneous. From statements in the brief of appellees the wrong impression may have been deduced from the case of Davis v. Holmes, 189 Miss. 554, 198 So. 25. That case referred to seven blocks surrounding the funeral home, but it was not the intention of the court to describe a minimum area which must exist to be entitled to protection; it was simply describing the area involved in that case, as bearing upon whether the location of the funeral home was in an essentially residential section. To require that the area cover seven or eight blocks would include a large part of most, and entirely all of some, of the municipalities of this state in which funeral homes are located. A residential section might embrace a much less area. The question is comparative and relative. The extent of the territory is only one factor. The number, kind, value and locations of the structures therein, the uses to which the territory is adapted, and all the surrounding facts and circumstances are to be considered. No hard and fast rule can be laid down. Each case must depend upon its own facts. Thus viewing the scenes of this case, having all factors in mind, we do not think the location of an ice plant, a gas station, and a small grocery store operated in connection with the owner's home, situated as these are, within a radius of one thousand feet, with over a hundred residences therein, changes a former residential section to one not now essentially so. The transition, if such is taking place, has not reached the point where the residents are not entitled to protection. Davis v. Holmes, supra; Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 204, 43 A.L.R. 1155.
Also "An undertaking establishment stands on a different footing from that of the occasional corner grocery and oil filling station which have made their appearances there. The latter may offend the aesthetic sense of those living in their proximity; the former would destroy, in an essential respect, the comfort and repose of their homes." "The constant going and coming of the hearse; . . . the not infrequent taking in and out of dead bodies; the occasional funeral with its mourners and funeral airs, held in the part of the house designed for a chapel; the unknown dead in the morgue, and the visits of relatives seeking to identify them; the thought of autopsies, of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman — all of these are conducive to depression of the normal person; each of these is a constant reminder of mortality. These constant reminders, this depression of mind, deprive the home of that comfort and repose to which its owner is entitled." Tureman v. Ketterlin, supra. This court also gave a graphic description of the natural effect of such a situation upon the nearby residents in Williams v. Montgomery, 184 Miss. 547, 186 So. 302. As was said in Cunningham v. Miller, 178 Wis. 22, 189 N.W. 531, 534, 23 A.L.R. 739: "We think it is equally clear that maintenance of an undertaking and embalming establishment in a residential section must inevitably operate to decrease substantially property values, destroy the comfort and happiness of people residing in the immediate vicinity, and is an unwarrantable invasion of the rights of others." The vicinity of the funeral home in this case was essentially a residential section and its establishment and operation constitute a nuisance. For collection of cases on this subject see annotations in 23 A.L.R., p. 745; 43 A.L.R. 1171; 87 A.L.R. 1061.
With the modern conveniences and facilities now afforded by municipalities there is no necessity for funeral homes to intrude themselves into essentially residential sections over the protest of the residents thereof, and the present trend of the courts is to recognize that fact. Williams v. Montgomery, supra.
Appellees are in no position to complain of loss of investment. They heeded not the notice given them nor delayed their preparations awaiting a judicial termination of the questions by the courts. There is no element of estoppel as against appellants. Nor are we dealing with a funeral home already established and in operation, unchallenged, for an appreciable length of time.
The permanent injunction should have been granted, and such order will be entered here.
Reversed and injunction issued.