Davis v. Holmes

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: Davis v. Holmes, 189 Miss. 554, 198 So. 25 (Miss. 1940)
• Decision Date: 14 October 1940
• Docket Number: 34242
• Parties: DAVIS v. HOLMES

198 So. 25

189 Miss. 554

DAVIS v. HOLMES

No. 34242

Supreme Court of Mississippi

October 14, 1940

Suggestion Of Error Overruled November 11, 1940.

APPEAL from the chancery court of Holmes county, HON. R. W. CUTRER Chancellor.

Suit in equity by L. M. Holmes against J. N. Davis for an injunction against establishment of a funeral home in a residence building on a lot adjoining complainant's residence lot. Judgment for complainant, and defendant appeals. Affirmed.

Affirmed.

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...