Cunningham v. Miller

• Decision Date: 08 July 1922
• Parties: CUNNINGHAM ET AL. v. MILLER ET UX.
• Court: Wisconsin Supreme Court

178 Wis. 22

189 N.W. 531

CUNNINGHAM ET AL.

v.MILLER ET UX.

Supreme Court of Wisconsin.

July 8, 1922.

Appeal from Circuit Court, La Crosse County; Wickham, Judge.

Suit by Daniel Cunningham and others against Adelbert J. Miller and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Eschweiler, J., dissenting.

This is an action in equity brought to restrain the defendants from using certain property located in the residential section of the city of La Crosse as an undertaking establishment, upon the ground that such use constitutes a nuisance per se, and an unwarrantable invasion of the property rights of the residents in that vicinity.

It appears that for more than 20 years the defendant, Adelbert J. Miller, had conducted a general undertaking business located at 328 Main street, in the center of the business district of the city of La Crosse; he could not renew his lease, and purchased the property in question, known as No. 134 West Avenue South, which prior to that time had been used as a residence. The lot or plat of land on which the building stood had a frontage on West street of 115 feet, and extended backward to a public alley in the rear, a distance of 293 feet. The property was purchased in November, 1920. The defendants made certain repairs and improvements, not, however, making any structural changes in the house, and installed their undertaking business therein in January, 1921. The plaintiffs, who were adjacent property owners, residents in the immediate locality, commenced this action in March, 1921, seeking a perpetual injunction restraining the defendants from using the premises for an undertaking business, alleging: (1) That the district is an exclusive residence district; (2) that, because of funerals having been held from said place, and a consciouness that dead bodies may be or are on the Miller premises, and because of other reminders of mortality, the neighbors are discommoded and unhappy, and their feelings and spirits are depressed, life for them becomes less tolerable, and their bodily resistance to disease is lessened; (3) that odors from the disinfectants used can and do escape to nearby premises; (4) that there is danger of infection and spread of disease; and (5) that the neighborhood has become less desirable as a residence district, and property values are accordingly depreciated.

The defendants deny the allegations of the complaint; allege that their business is conducted in a lawful and legitimate way, without injury to the plaintiffs or the general public; allege that funerals are held from the premises at infrequent intervals, and are but little attended; that the business is conducted in strict compliance with all the laws, rules, and regulations of the state of Wisconsin and ordinances of the city of La Crosse relating thereto. The defendants further claim that the locality is not in fact a strictly residence district; that, through rapidly changing conditions, West avenue has become a commercial thoroughfare, has lost its character as a residence street, and is building up with amusement places, factories, stores, garages, and other establishments, and in recent years several churches have been built along its course, and that another church is about to be built.

The court made the following findings of fact:

“(1) That prior to November 10, 1920, each plaintiff owned and occupied as a residence, with his or her family, the respective tracts of land with the dwelling house thereon as alleged in the complaint, and still owns and occupies said property, which residences are all maintained in good condition, and large sums of money have been expended in improving and beautifying the buildings and grounds.

(2) That on November 10, 1920, the defendant, Sophia Miller, purchased and still owns the land which the complaint alleges she purchased, including a valuable building thereon which was formerly used as a residence, on which property the defendant, Adelbert J. Miller, husband of Sophia Miller, has since January 25, 1921, maintained and conducted an undertaking establishment where a large number of bodies of the dead are embalmed and prepared for burial, where funerals are held in some cases, where dissections and autopsies are made in about 5 per cent. of the cases handled, and where coffins and other materials are stored for use in said business.

(3) That during said time said Adelbert J. Miller maintained a sign reading “Funeral Home” in a conspicuous place on the front of the building, kept a light burning all night in the premises, and conducted said business, including the bringing in and removal of the bodies of the dead at all hours, all of which was visible, and the noise incident to the work audible, from the street and from the residences of most of the plaintiffs, especially those who lived in close proximity thereto.

(4) That said undertaking establishment has been conducted in as sanitary a manner as is usual in such business, but it is impossible to keep the same entirely free from flies, and that some offensive odors arising from the use of embalming fluids and from dissected bodies at times when autopsies are made escape therefrom to adjoining premises.

(5) That defendants' premises are located on the west side and facing on West avenue, a street extending in a northerly and southerly direction. It adjoins the residence of the plaintiff Elsie Gile Scott on the north and the residence of the plaintiff Thomas E. Woolley on the south. The defendants' building is within 60 feet of the Woolley residence, and a little nearer to the building used as a private garage and residence of the caretaker of the Scott premises. The block in which these buildings are located is bounded on the north by Main street, on the south by King street, and on the west by Eleventh street. The next street south of King street is Cass street. The portion of the city of La Crosse lying between Main street on the north and Cass street on the south and extending easterly from Eleventh street, a distance of five or six blocks, including the premises on the north side of Main street and certain premises south of Cass street, constitute an exclusive residence district, the most valuable in said city, in which many large and expensive residences and many smaller and less expensive ones now are and have been maintained for several years last past, some of the best of which residences are located on West avenue, including the Scott residence, and no business house is located within 5 blocks in any direction from the defendants' premises except a few scattered business houses to the north, the nearest of which are a drug store and a paint shop on the west side of West avenue in the north half of the block north of Main street. Residence property on the northeast corner of West avenue and King street has recently been purchased by the Christian Science Church, presumably for church purposes, but the evidence is conflicting and not very definite as to the use that is to be made thereof. West avenue is a street 80 feet in width. For many years it has been paved with macadam. It is extensively used for travel. Most of the travel consists of automobile driving for purposes of pleasure, but the travel includes that of some delivery trucks and a considerable number of funeral processions to cemeteries located in a northerly and an easterly direction from the defendants' premises.

(6) That each of the plaintiffs has suffered damages by reason of the maintenance of said undertaking establishment; that the effect of the continuance of said establishment at said place, as a natural and probable result, would be as follows: To materially decrease the market value of the residences of the plaintiffs; to render such residences materially less desirable as homes; to create in the plaintiffs and members of their families feelings of dread of contagious diseases, and feelings of discomfort and dissatisfaction from the sights and noises, and, in some instances, from the odors incident to said business, and, by the constant reminder of death, to depress the feelings of some of the plaintiffs and members of their families, especially the women, children, and such persons who are ill or of a nervous temperament, such depressed feeling thereby impairing the comfort and happiness of all members of the family.

(7) That said place is an unsuitable and improper place for the maintenance of said undertaking establishment, and its maintenance at said place is a nuisance”

--and concluded as a matter of law that plaintiffs were entitled to judgment abating the nuisance, and perpetually enjoining and restraining the defendants from the further continuance of an undertaking or embalming establishment or funeral home upon the premises. Judgment was entered accordingly, from which the defendants appeal.

Jesse E. Higbee, Oscar J. Swennes, and John F. Doherty, all of La Crosse, for appellants.

Winter, Morris, Esch & Holmes, Geo. H. Gordon, and Law & Gordon, all of La Crosse, for respondents.

ROSENBERRY, J. (after stating the facts as above).

The judgment is challenged upon two grounds: First, that the evidence does not support the findings of fact made by the court; second, the findings do not support the judgment. We have carefully reviewed the...