Summary
In Davis v. Holmes, 189 Miss. 554, 198 So. 25 (1940) the Court again affirmed a decree enjoining the operation of a funeral home.
Summary of this case from Rutledge v. National Funeral Home of New AlbanyOpinion
No. 34242.
October 14, 1940. Suggestion of Error Overruled November 11, 1940.
NUISANCE.
An area of eight city blocks, wherein there are about 75 residences and only commercial places are 2 small grocery stores and small delicatessen shop, is essentially residential in character, so as to entitle owner and occupant of residence therein to injunction against establishment of funeral home in residence building on adjoining lot.
APPEAL from the chancery court of Holmes county; HON. R.W. CUTRER, Chancellor.
Justin J. Cassidy, of McComb, and Forrest B. Jackson, of Jackson, for appellant.
The evidence in this case clearly shows this to be a semi-residential district. As shown from the record there are bakeries, grocery stores, nurses homes, doctors clinics, apartment houses, and even another funeral home (within one and one-half blocks) already established on this very street in question. An undertaking establishment is not enjoinable nuisance in a semi-commercial district.
Fentriss v. Sicard et al., 181 Ark. 173, 25 S.W.2d 18; Mildable et al. v. Holberg, 55 N.D. 523, 214 N.W. 802; O'Malley v. Machen et al., 182 Minn. 294, 234 N.W. 323.
Even in the late Mississippi case of Williams v. Montgomery, 184 Miss. 547, 186 So. 202, the court indicated in the last paragraph, that if the facts had been different and the district had been semi-residential as it is in the case at bar that their holding would have been different, the court saying, "We are not here dealing with a funeral home for an appreciable length of time permanently esstablished unchallenged, nor with one located on a street already being used for conducting commercial enterprises."
A resume of all the cases, where it was sought to enjoin a funeral home as a nuisance, indicate clearly that the courts were not satisfied to enjoin them as such merely because they were located in a residential district, unless it was strictly and exclusively a residential district, but in all of the cases found in the books the funeral home would have had to be in actual operation, and have proven themselves to be a nuisance, or there was some other circumstance that aggravated and determined the question. There was the necessity of a zoning ordinance prohibiting their operation in that particular district, or the imminent probability of odors, noises, and communicable diseases coming from the property. There are no cases to be found where such a business was enjoined when it was located in a semi-residential district, or where the establishment of the home had been permitted by ordinance, and the cases all indicate that where there has been such an ordinance, the courts are reluctant to interfere unless the action of the board has been unreasonable and arbitrary.
The City of McComb had given the appellant in this case permission to establish this funeral home, and the evidence clearly shows the district to be semi-residential.
Flowers, Brown Hester, F.W. Bradshaw, and Robert Burns, Jr., all of Jackson, for appellee.
The operation of a funeral home in the property in question would constitute a nuisance, as it would affect appellee, and such operation should be prevented by the court.
Williams v. Montgomery, 186 So. 302.
Much has been said by counsel for appellant that Delaware Avenue is not a residential street because some commercial enterprises have been established on it. The testimony showed that Delaware Avenue had eighty-nine residences, four stores, five churches, one hospital, and one funeral home. The record further shows that there are filling stations and neighborhood stores on all residential streets throughout the city of McComb. And, indeed, this will be found true of practically all, if not all, cities.
It is denied that the property in which appellee seeks to establish a funeral home is situated in a semi-commercial district of McComb.
National Refining Co. v. Batte, 100 So. 388.
Appellant had contracted to purchase the lot and the two-story brick residence located thereon at the corner of Delaware Avenue and Sixth Street in the City of McComb. Appellee owns and occupies a commodious and well-kept residence immediately adjoining on the west, the two residences being separated by a distance of less than fifty feet. Appellant's purpose and plan in acquiring the corner lot residence aforesaid was to establish and conduct therein the business of an undertaker, generally called in this record a funeral home.
Upon learning of this purpose appellee objected, and being advised by appellant that the objection would be disregarded, appellee filed his bill for an injunction which, upon the hearing, was sustained by the trial court under the authority of Williams v. Montgomery, 184 Miss. 547, 186 So. 302.
Appellant contends that the cited case is not applicable, because, as he says, the location in question is not within a district strictly and exclusively residential, but rather that it is within what may be termed a semi-commercial area.
The material facts are not substantially disputed, and they are that in the seven blocks which surround the block in which the two aforementioned residences are located, there is only one commercial property and that is a grocery store of no great size, in connection with which a filling station is operated, at the corner of Delaware and Michigan Avenues, and about three hundred and seventy-five feet to the west of appellee's residence. In the block wherein the two residences in question are situated, there is a small grocery store facing Delaware Avenue and about three hundred feet west of appellee's residence, the two grocery stores being on the opposite sides of Delaware Avenue, and very nearly opposite each other. There is a small shop, called in the briefs a delicatessen shop, on the south side of the block and on Minnesota Avenue facing the public school buildings. In the eight blocks mentioned there are approximately seventy-five residences, according to the map, which is not questioned by either side, and the only property in the eight blocks which may be characterized as commercial are the three small food furnishing places, and they have been there for a considerable time.
We are of the opinion that the area in question is essentially residential in character and that the presence of the three small commercial places, particularly in view of the nature of the business transacted there, is not of such material significance as to oust the district from the protection afforded under the rule announced in Williams v. Montgomery, supra. Compare Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 43 A.L.R. 1155.
The other questions raised and argued do not, as we think, present any such difficulty as will require discussion of them.
Affirmed.