Kirk v. Mabis

• Decision Date: 14 February 1933
• Docket Number: 41493
• Citation: 246 N.W. 759,215 Iowa 769
• Parties: CLYDE KIRK, Appellant, v. A. H. MABIS et al., Appellees
• Court: Iowa Supreme Court

246 N.W. 759

215 Iowa 769

CLYDE KIRK, Appellant, v. A. H. MABIS et al., Appellees

No. 41493

Supreme Court of Iowa, Des Moines

February 14, 1933

Appeal from Polk District Court.--JOHN J. HALLORAN, Judge.

Suit in equity to enjoin as a nuisance the establishment and operation of a funeral home by the defendant Roy W. Caldwell on certain premises adjoining the residence of the plaintiff the lot upon which the proposed funeral home was to be established being located in a district which had, by the zoning ordinance of the city of Des Moines, Iowa, been designated as a commercial district. Decree was entered dismissing the plaintiff's petition and dissolving the temporary injunction, and plaintiff appeals. The opinion states the facts.

Affirmed.

Stipp Perry, Bannister & Starzinger and Edward Robinson, for appellant.

Vernon W. Lynch, Strock, Sloan & Herrick, George P. Comfort Chauncey A. Weaver, and C. R. S. Anderson, for appellees.

OPINION

MITCHELL, J.

The appellant Clyde Kirk has owned, and, together with his family, consisting of his wife and two children, has occupied as his home, the residence locally known as 2118 University Avenue, in the city of Des Moines, for a period of better than twenty years. The said premises face University Avenue and extend 47 feet in width and 192 feet in depth. The Mabis property, which adjoins the Kirk premises immediately to the east, comprises the large brick residence and grounds which constitute the southwest corner of 21st Street and University Avenue. Said property, which faces 21st Street and adjoins the Kirk property for the full depth of 192 feet, is described legally as follows: The west 47 feet of Lot 1 and the west 47 feet of the north 75 feet of Lot 2, in Block 1, of Cottage Grove Avenue Addition, now included in and forming a part of the city of Des Moines, Iowa.

On the 24th day of October, 1931, the appellee Caldwell purchased from the appellees A. H. Mabis and Mrs. A. H. Mabis the following described real estate, to wit: the east 210.5 feet of Lot 1, Block 1, Cottage Grove Avenue Addition, an addition now included in and forming a part of the city of Des Moines, Polk County, Iowa. The distance between the Kirk house line and the Mabis rear lot line is 15 feet, of which distance the Kirk driveway occupies a width of 8 feet. A space of ground 4 or 5 feet in width separates the Kirk and Mabis driveways. The Kirk house is so constructed that the living room, dining room, and a bedroom are on the east side, facing the Mabis residence.

On the 26th day of October, 1931, the appellee Caldwell entered into possession of said premises and occupied the same for use as an undertaking establishment. On that date, October 26, 1931, he conducted at that location one funeral. On the 28th day of October, 1931, the department of buildings of the city of Des Moines issued to appellee Caldwell a building permit for certain alterations of said premises for use as a funeral home, and on the same date issued to him a certificate of occupancy and compliance for use of the property as a funeral establishment. The appellant appeared in the office of the department of buildings the day the permit was issued, and objected to the issuance of said permit, and when the permit was issued, filed an appeal. On the 29th day of October, 1931, appellant filed a petition for an injunction and a restraining order against the appellees, and on the same date the court entered a temporary injunction restraining the use of said premises as an undertaking and embalming establishment. The appellees filed a motion to dissolve the temporary injunction and filed separate answers. The appellee Roy W. Caldwell denied each and every allegation contained in the petition not admitted in his answer. He admitted that he is in the undertaking business, doing business under the trade name and style of Caldwell Funeral Home, and admitted that he purchased from the appellee Mabis certain real estate described in the appellant's petition; and he further pleaded as a defense that the property which he purchased and upon which he intends to locate his funeral home is included in the property covered by the zoning ordinance known as Ordinance No. 3619, duly passed by the city of Des Moines, and that said ordinance was in full force and effect on October 24, 1931, and that the property which he has purchased has been designated by said ordinance as in a commercial district. The said zoning ordinance of the city of Des Moines in force and effect on October 24, 1931, designates Lot 1, Block 1, of Cottage Grove Avenue Addition, as commercial. Caldwell further pleaded as a defense the fact that a permit had been issued by the proper officers of the city of Des Moines, authorizing and directing the use of the premises as a funeral home. Appellee Caldwell purchased the property hereinbefore described, upon which he is operating his funeral home, for the sum of $ 15,000 from the appellees A. H. Mabis and Mrs. A. H. Mabis.

The appellant has argued with a great deal of force that the establishment of a funeral home in a residential district is a nuisance. The only injury complained of by the appellant is that the carrying on of the undertaking and embalming business in the immediate vicinity of appellant's home had a depressing effect upon the appellant's family, by reason of its frequent reminder of mortality. The injury complained of was mental, rather than physical and was one which did not affect all persons alike.

The authorities upon the question of whether a funeral home in a residential district is or is not a nuisance are very much divided. The appellant cites various cases in his brief. The main cases cited are discussed in the case of Stoddard v. Snodgrass, a recent case decided by the Supreme Court of the state of Oregon and found in 241 P. 73, and also in 43 A. L. R. 1160, 1163. It would be presumptuous of us to attempt to improve upon the treatment of these cases by the Supreme Court of Oregon. Of these cases the Supreme Court of Oregon says:

"Plaintiffs rely upon Densmore v. Evergreen Camp, 61 Wash. 230, 31 L. R. A. (N. S.) 608, 112 P. 255, Ann. Cas 1912B, 1206; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L. R. A. 1918A, 825, 164 N.W. 507; Cunningham v. Miller, 178 Wis. 22, 23 A. L. R. 739, 189 N.W. 531; Leland v. Turner, 117 Kan. 294, 230 P. 1061.

"In the first case cited it was, in effect, held that the maintenance of an undertaking establishment in a residence part of a city, within a few feet of neighboring residences, may be enjoined by their owners as a nuisance, in view of the probable interference with the comfortable enjoyment of their property by the depressing effect of reminders of mortality and the escape of noxious odors and gases from the chemicals used in the business. This broad and unqualified statement of the law seems to have been somewhat restricted by that court in Rea v. Tacoma Mausoleum Asso. 103 Wash. 429, 435, 1 A. L. R. 541, 545, 174 P. 961, 962, where the court said: 'No decision has been called to our attention wherein any court has awarded injunctive relief, rested upon the sole ground of the mere presence of a cemetery or other place of sepulture, unattended by injurious or offensive drainage or fumes, sensible to the complaining party, and our own search leads us to believe that no such decisions have been rendered. . . . The Densmore Case involved the right of the plaintiff to injunctive relief, as against the maintenance of an undertaking establishment very close to his residence. That decision may seem to contain observations lending some support to the contentions of counsel for appellants, but, when critically read, we think it will be found not to rest upon the mere unpleasantness attending the close proximity of dead bodies, but also upon the fact, as therein stated, that "there is evidence tending to show that noxious odors, gases, especially those arising from the deodorants used in cleansing the premises, would permeate the homes of respondents; that there is danger of infection and contagion from the proximity of the morgue, and the possibility of files passing from one place to the other."

"Again in Linsler v. Booth Undertaking Co., 120 Wash. 177, 206 P 976, which was a suit brought by the owners of adjacent and nearby property and a school district to restrain the defendant from conducting an undertaking establishment, which was located within a district where the carrying on of such business was authorized by an ordinance of that city, that court...