Summary
In Williams v. Montgomery, 184 Miss. 547, 186 So. 302 (1939), the decree of the chancery court enjoined the operation of a funeral home in an exclusively residential neighborhood.
Summary of this case from Rutledge v. National Funeral Home of New AlbanyOpinion
No. 33482.
February 6, 1939.
1. NUISANCE.
A constant reminder of death, naturally caused to those in the vicinity of a funeral home, is bound to have a depressing affect upon persons who have sought a quiet street and established it for a long time, and tends to impair right to enjoy life, liberty and pursuit of happiness.
2. EVIDENCE.
Judges must be supposed to be acquainted with the reaction of the average, normal person and his sentiments and feelings.
3. NUISANCE.
Operation of a funeral home in quiet residence street held a "private nuisance," enjoinable at the suit of property owners, notwithstanding expenditure of $25,000 in setting up home, where defendants were warned before much had been expended that stubborn resistance would be made to operation of funeral home.
APPEAL from the chancery court of Leflore county; HON. R.E. JACKSON, Chancellor.
Knox Lamb, J.W. Bradford, F.M. Witty, and O.L. Kimbrough, all of Greenwood, for appellants.
We do not believe the weight of authority is to the effect that a funeral home in a residential section is a nuisance and can be abated. On the contrary, we contend that the weight of authority is to the effect that a funeral home located in a residential section is not a nuisance within itself, but only becomes a nuisance when it is operated in an improper manner and under particular circumstances, which circumstances are not present in the instant case.
While the Supreme Court of Mississippi has never passed on this exact proposition, it has considered questions so similar, that it is, in effect, the settled law of Mississippi that the funeral home in this case cannot be abolished. Our courts have held that an owner cannot be restricted in the use and enjoyment of his property, except in the most extreme cases, and that the appellees, complainants below, must prove their right to the relief prayed for beyond every reasonable doubt. And that, even then, they are entitled only to so much relief as is necessary.
Green v. Lake, 54 Miss. 540; McCutchen v. Blanton, 59 Miss. 116; Quintini v. Bay St. Louis, 1 So. 625, 64 Miss. 483.
We assert, without fear of successful contradiction, that even the Legislature of a State is without power or authority to wantonly deprive an owner of property of lawfully enjoying and using same. If a municipality and a sovereign State cannot ruthlessly deprive a citizen of the lawful use of his property, by what authority do these few complainants claim that right?
National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388.
There are other states which have passed on the precise point now under consideration, and which have held that the funeral home as operated in the case at bar does not constitute a nuisance.
Westcott v. Middleton, 43 N.J. Eq. 478, 11 A. 490; Koebler v. Pennewell, 75 Ohio St. 278, 79 N.E. 471; Dean v. Powell, 55 Cal.App. 545, 203 P. 1015; Stoddard v. Snodgrass, 214 P. 73, 43 A.L.R. 1160; L.D. Pearson Son v. Bonnie, 209 Ky. 307, 272 S.W. 375, 43 A.L.R. 1166; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Dutt v. Fales, 230 N.W. 948; Meldahl v. Halburg, 55 N.D. 523, 214 N.W. 802; Mast v. Oakley, Metcalfe Funeral Home, 101 S.W.2d 819; Densmore v. Evergreen Camp, 61 Wn. 230, 31 L.R.A. (N.S.) 608, 112 P. 255, Ann. Cas. 1912B 1206; Rea v. Tacoma Mausoleum Assn., 104 Wn. 429, 174 P. 961, 1 A.L.R. 541.
The states of New Jersey, Oregon, Kentucky, California, Texas, Ohio, Michigan, Arkansas, Washington, North Dakota and Tennessee have refused to abate the operation of a funeral home under facts and circumstances much stronger from the complainant's point of view than in the case at bar. We will now cite all the cases, involving this question, where funeral homes have been abated and show that even these cases are by no means contrary to our theory, but, on the other hand, support our contention that where funeral homes are operated under the same conditions as the one at bar they do not constitute a nuisance.
Higgins v. Bloch, 104 So. 429, 112 So. 739; Harris v. Sutton, 168 Ga. 565, 148 S.E. 403; Albright v. Crim, 185 N.E. 304; Bevington v. Otte, 273 N.W. 98; Hatcher v. Hitchock, 281 P. 869; Leland v. Turner, 117 Kans. 294, 230 P. 1061; Weinman v. Miles, 4 P.2d 437; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A 825; Dillon v. Moran, 211 N.W. 67; Street v. Marsh, 216 Mo. 698, 291 N.W. 494; Beisel v. Crowsby, 104 Neb. 643, 178 N.W. 272; Arthur v. Virkler, 144 Misc. 483, 268 N.W. Supp. 886; Jordan v. Nesmith, 132 Okla. 226, 269 P. 1096; Blackburn v. Bishop, 299 S.W. 264; Bragg v. Ives, 140 S.E. 656; Cunningham v. Miller, 178 Wisc. 22, 23 A.L.R. 739.
Alfred Stoner and H. Talbot Odom, both of Greenwood, for appellees.
We do not contend that a funeral home is a nuisance per se. The authorities are uniform on this point and hold that a funeral home is not a nuisance if established and operated in the right locality and if properly kept and managed. But our position is that a funeral home or undertaking establishment may be enjoined if it is located, and attempts to operate, in an exclusively residential district of a city under the circumstances disclosed by the record in this case.
As we conceive the record, the precise legal question involved in the case at bar is whether or not a funeral home or undertaking business can invade a strictly residential section in a city, establish itself, and carry on its operations in the face of opposition and protests of near-by and adjacent home owners, and thereby depress the value of their property and destroy the tranquility, peace of mind, and happiness of their homes; or will a court of equity grant relief by enjoining such establishment as a private nuisance?
Our own court has never passed on the proposition, and being a matter of first impression, we must look to the decisions of other jurisdictions where we find the exact point has been thoroughly considered and is well settled, but there is not complete uniformity in the earlier decisions. However, the greater weight of authority and all cases coming to our attention decided since 1925 are to the effect that the establishment and operation of an undertaking business in a purely residential section under the circumstances shown in the case at bar constitute a private nuisance and will be enjoined.
Kirk v. Mabis, 246 N.W. 759, 87 A.L.R. 1055; Higgins v. Bloch, 104 So. 429, 112 So. 739; Laughlin, Wood Co. v. Cooney, 126 So. 864; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Harris v. Sutton, 168 Ga. 565, 148 S.E. 403; Albright v. Crim, 185 N.E. 304; Bevington v. Otte, 273 N.W. 98; Street v. Marshall, 316 Mo. 698, 291 S.W. 494; Leland v. Turner, 117 Kans. 294, 230 P. 1061; Hatcher v. Hitchcock, 129 Kans. 88, 281 P. 869; Weiman v. Miles, 4 P.2d 437; Osborn v. Shreveport, 143 La. 932, 79 So. 542, 3 A.L.R. 955; Lewis v. Baltimore, 164 A. 220; Seier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A 825; Dillon v. Moran, 237 Mich. 130, 211 N.W. 67; Dutt v. Fales, 230 N.W. 948; Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202; Street v. Marshall, 316 Mo. 698, 291 S.W. 494; Biesel v. Crosby, 104 Neb. 643, 178 N.W. 272; Arthur v. Virkler, 144 Misc. 483, 258 N.W. Sup. 886; Mendahl v. Holberg, 214 N.W. 802; Jordan v. Nesmith, 132 Okla. 226, 269 P. 1096; Blackburn v. Bishop, 299 S.W. 264; King v. Guerra, 1 S.W.2d 373; Mast v. Oakley Metcalf Funeral Home, 101 S.W.2d 819; Bragg v. Ives, 149 Va. 483, 140 S.W. 656; Densmore v. Evergreen Camp, 61 Wn. 230, 31 L.R.A. (N.S.) 608, 112 P. 255, Ann. Cas. 1912B, 1206; Hean v. Heath, 296 P. 816; Cunningham v. Miller, 178 Wis. 22, 189 N.W. 53, 23 A.L.R. 739.
Where either of two conclusions from reasonable inferences is justified by evidence, conclusion reached by chancellor must be accepted as correct, and Supreme Court will interfere only when it is clearly manifest that Chancellor should have accepted the opposite view.
Powell v. Tomlinson, 129 Miss. 658, 92 So. 583; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Buckaby v. Jenkins, 153 Miss. 359, 121 So. 130; Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Cole v. Standard Life Ins. Co., 173 Miss. 507, 154 So. 533; Biles v. Walker, 121 Miss. 98, 83 So. 411; Nash v. Stanley, 168 Miss. 691, 152 So. 294; Langston v. Farmer, 176 Miss. 870, 170 So. 233; Glover v. Falls, 120 Miss. 201, 82 So. 4; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91.
Argued orally by Knox Lamb, for appellant, and by H. Talbot Odom and Alfred Stoner, for appellee.
The Williams Funeral Home, conducted by Mrs. Alice Williams and M.T. Williams, and the Southern Undertaking Association appealed to this Court from a decree of the chancery court perpetually enjoining them from operating a funeral home and undertaker's establishment and a morgue on certain property owned by the appellants, known as the Tarver residence, on the River Road in the City of Greenwood, Mississippi. The bill was filed by Susan Malone Scales, Betty Malone, H.F. McShane, Mrs. Lillie H. Montgomery, T.S. Marye, W.P. Weaver, and Joseph W. George seeking a perpetual injunction.
The bill very fully described the operation of the funeral home and undertaking establishment, and the answer denied every material allegation in the bill, save that it was admitted that the funeral home was being operated. On the hearing of the case many witnesses were examined and we cannot undertake a detailed analysis thereof.
The chancellor found, and we think it was practically undisputed, that River Road was an exclusively residential district in the City of Greenwood, fronting on Yazoo River, with a paved street between, described in the record as a beautiful residential district. No zoning ordinances are here involved.
On July 26, Mrs. Williams filed a deed conveying to her the Tarver property, which was a two-story house that had been always theretofore occupied as a residence. Mrs. Scales and Miss Betty Malone lived immediately west of the funeral home about forty-five feet therefrom. Mrs. Montgomery and her husband lived to the east, with Dewey Street between, about ninety-five feet from the funeral home. The other complainants lived on that street at various distances, but further from the funeral home than those immediately adjoining. Directly upon the filing of the deed, it became known to these complainants and others that it was proposed by the Williams to establish a funeral home in the Tarver residence, and immediately protests were made by mass meetings and by direct notice to the owners of the funeral home. However, the appellants proceeded to reconvert the residence into a funeral home and ignored these protests. Promptly this bill was filed, the contents of which will appear from an abbreviated finding of facts by the court which we approve. There was evidence that some of the parties living on this street selected their homes there because of its quietude. The record reflects that the street was adorned with residences, lawns, and the appurtenances of comfortable southern city homes, and also indeed a very choice residential section of Greenwood and the Delta. Greenwood has a population of over 11,000.
After a critical examination of the voluminous record in this case, we think the chancellor was warranted in finding the following facts in addition to the above statement: That upon the beginning of occupancy by the appellants the adjoining neighbors were annoyed to an appreciable extent by noises, unusual odors, slamming of doors, the ringing of the telephone and the door bell, the parking of cars and ambulances with lights shining upon their premises, the display of caskets and other burial paraphernalia, such as the hearse and the dead wagon, and the appliance used to lower the caskets containing dead bodies into the grave, also the bringing of the dead to the embalming room where the bodies were embalmed. The home was provided with a chapel, where they were equipped to have funeral services. The adjoining neighbors would see and hear constantly, according to the business done by the appellants, all the attributes and concomitances of a funeral party, the singing of funeral dirges.
Into this home were carried dead bodies sometimes for embalming, a process by which all the blood is forced from the body and a preservative fluid injected therein, and as to the length of time a body would remain in the funeral home would depend upon the circumstances of each case. The property of those in the immediate vicinity would be greatly depreciated because of the operation of the funeral home, and that of others on that street would be depreciated to a less degree according to the distance from the funeral home. The chancellor found that the funeral home was a constant reminder of death, and the things connected with it were calculated to depress the feelings of the average normal person, and that such is detrimental to the health. The conclusion of the court below was that the appellees were denied the free use, occupation, repose, and comfort of their homes, and that the value thereof would be materially decreased thereby, although there were witnesses who testified that a funeral home had no unfavorable or depressing effect upon them.
The appellants had expended a considerable sum of money in the purchase and conversion of this residence into a funeral home in excess of $25,000, but they were warned before much of the expense was incurred that stubborn resistance would be met by them in the courts if they converted the residence into a funeral home.
We think the chancellor was warranted in finding in the maze of conflicting evidence in this case that the appellees were being denied the free use, occupation, repose, comfort, and enjoyment of their homes by reason of the establishment and operation of the funeral home, and that their property values had been consequently materially decreased thereby. He was further warranted in finding that the operation of a funeral home in all its details dealing with death and dead bodies would have a depressing effect on the average normal person.
This funeral home was conducted in a modern manner and was sanitary.
It is our own conclusion, based upon the conflicting evidence in this case, that a constant reminder of death, naturally caused to those in the vicinity of a funeral home by its operation, is bound to have a depressing effect upon the persons who have sought a quiet street and and established it for a long time, and tends to impair right in this country to enjoy life, liberty, and pursuit of happiness.
It is true that a funeral home is now deemed a necessity, but its business is — dealing with the dead in the most gruesome manner. It is true as one poet has said that, "Our hearts like muffled drums are beating funeral marches to the grave," but it is not conducive to the quiet, peaceable enjoyment of one's property, who has selected an exclusively residential district for his home, to have a funeral home protrude itself into that district and conduct its business of dealing with the dead. The constant reminder of death to the average normal human being is not conducive to health and happiness when continually thrusting its "skull and crossbones" in his presence. The Savior of all mankind when He came face to face with it prayed to His Father, "Let this cup pass from me."
One poet has thus described it:
"Come to the bridal chamber, Death! Come to the mother, when she feels For the first time her firstborn's breath; Come when the blessed seals That close the pestilence are broke, And crowded cities wail its stroke; Come in consumption's ghastly form, The earthquake shock, the ocean storm; Come when the heart beats high and warm With banquet song, and dance, and wine; — And thou art terrible — the tear, The groan, the knell, the pall, the bier, And all we know, or dream, or fear Of agony, are thine."
The authorities in our state are but little, if any, help on the question presented as to whether a funeral home, which is obtrusion upon a quiet and exclusively residential district, long established, shall be abated as a nuisance or perpetually enjoined.
The trend of the great weight of authority in this country in other jurisdictions have held under such conditions as we have delineated that such a funeral home conducting its business in the usual way, which protrudes itself (through its owners) upon such a district as we have described, may be perpetually enjoined and abated as a nuisance. The older authorities place the emphasis upon the right of the property owner to use his business for a lawful purpose emphasizing the property right. The modern trend of authority puts the stress upon the old maxim, "use your own so as not to injure another's property," and have held in effect that a funeral home such as we have before us invades the physical rights of those living in the immediate vicinity, and close thereto. It must be conceded that the operation of a funeral home is a lawful business, but the question presented — is it lawful under the circumstances here when we balance the rights of human beings and homes and environments as against mere property rights? See National Refining Company v. Batte, 135 Miss. 819, 100 So. 388, 35 A.L.R. 91.
In the case of Albright et al. v. Crim et al., 97 Ind. App. 388, 185 N.E. 304, the Appellate Court of Indiana held that a funeral home conducting an undertaking business is not a nuisance per se, but its operation in a purely residential district of the city, established as such when the funeral home was later operated therein, is a private nuisance and should be enjoined. The bill in this case appears to have been drawn on the facts of that case. The case of Bevington v. Otte et al., 223 Iowa, 509, 273 N.W. 98, is practically on all fours with what must be conceded to be the facts of this case. In the case of Jordan v. Nesmith, 132 Okla. 226, 269 P. 1096, the Court there said on this question, quoting from Joyce on Nuisances: "No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business." We are not prepared to go all the way with this quotation because the necessity therefor does not now arise, but we quote this to show the length to which, in the opinion of law writers, the Courts have gone in the matter of funeral homes. Counsel on either side have vigorously attacked each of the authorities cited by the other, and it would be useless for us to undertake an analysis of the many decisions. We content ourselves with the statement that we think the following cases sustain the granting of the perpetual injunction of the case at bar. See Higgins v. Bloch, 213 Ala. 209, 104 So. 429; Laughlin, Wood Co. v. Cooney et al., 220 Ala. 556, 126 So. 864; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Harris et al. v. Sutton et al., 168 Ga. 565, 148 S.E. 403; Albright v. Crim, supra; Bevington v. Otte et al., supra; Leland v. Turner, 117 Kan. 294, 230 P. 1061; Osborn v. Shreveport, 143 La. 932, 79 So. 542, 3 A.L.R. 955; Jack Lewis, Inc. v. Mayor, etc., of Baltimore, 164 Md. 146, 164 A. 220. A zoning ordinance was involved there. Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A, 825; Street et al. v. Marshall et al., 316 Mo. 698, 291 S.W. 494; Beisel et al. v. Crosby, 104 Neb. 643, 178 N.W. 272; Arthur et al. v. Virkler et ux., 144 Misc. 483, 258 N.Y.S. 886. The decision in this case is that of a single judge, but its reasoning is logical and persuasive. Jordan v. Nesmith et al., supra; King et al. v. Guerra (Tex. Civ. App.), 1 S.W.2d 373; Bragg v. Ives, 149 Va. 482, 140 S.E. 656; Densmore v. Evergreen Camp, 61 Wn. 230, 112 P. 255, 31 L.R.A. (N.S.) 608, Ann. Cas. 1912B, 1206.
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.
In conclusion we will say that no necessity is shown for the obtrusion of a funeral home in a strictly and exclusively residential district, long established, and so clearly and distinctly identified as such. We conclude with the general statement that judges are human beings, who try to keep abreast with the judicial trend of the people for whom they apply the law. We must be supposed to be acquainted with the reaction of the average normal person and of their sentiments and feelings, and we are certain that the obtrusion of a funeral home, over the protests of the people who have established and for a long time lived in a beautiful environment, a residential district, is bound to have a depressing effect upon the financial value of the properties, that the scenes about a funeral home are bound to depress the feelings and comfort and quiet enjoyment of the property of those who witness and live under its shadow daily; and where all the paraphernalia and symbols of death are constantly exhibited, the reaction of a normal person must be that of one who feels a keen sense of depression. It is psychological that a person who lives in a depressed atmosphere will normally be depressed in spirit and sensibility, and will be weakened in a power to resist the vicissitudes of life, including disease. One who has selected a quiet home for happiness and joy and comfort will, by the obtrusion of a funeral home in his immediate vicinity, have his right to comfort, repose, and enjoyment in the home materially affected; and there must ensue a material depreciation of the value of the home. Under such circumstances, as delineated here, a funeral home although lawful, although conducted in a modern approved manner, is a nuisance to those so affected.
We are not here dealing with a funeral home for an appreciable length of time permanently established unchallenged, nor with one located on a street already being used for conducting commercial enterprises.
Affirmed.