Dawson v. Laufersweiler, 47621

CourtUnited States State Supreme Court of Iowa
Citation241 Iowa 850,43 N.W.2d 726
Docket NumberNo. 47621,47621
Decision Date01 August 1950

Page 726

43 N.W.2d 726
241 Iowa 850

No. 47621.
Supreme Court of Iowa.
Aug. 1, 1950.

Page 727

Kelleher & Kelleher and Helsell, Burnquist & Bradshaw, all of Fort Dodge, for appellant.

Breen, Breen & McCormick, Loth & Melton and Rider & Bastian, all of Fort Dodge, for appellees.

GARFIELD, Chief Justice.

The question for decision in whether construction of a funeral home across the

Page 728

street from plaintiffs' residence should be enjoined as a threatened nuisance.

In September, 1948, defendant, an undertaker, purchased for $20,000 lots 1, 2 and 3 in a certain block 16 in the city of Fort Dodge (1940 population 22,904). He then moved from the ground the old house there situated and excavated for a funeral home. The ground is the northwest corner of block 16 with a west frontage of 152 feet on 12th Street and a north frontage of 139 feet on 3d Avenue South. Since 1937 plaintiffs Dr. and Mrs. Dawson have owned and occupied the large residence across 3d Avenue from defendant's property in the southwest corner of block 17 with a west frontage of 76 feet on 12th and a south frontage of 187 feet on 3d Avenue.

[241 Iowa 852] Immediately north of the Dawson property are two houses, one behind the other, used for apartments, owned by the Howards, also named as plaintiffs. However, since they apparently took no part in the trial we refer to Dr. and Mrs. Dawson as if they were sole plaintiffs.

Upon removal of the old house and before excavation was completed in November, 1948, this suit was started to enjoin construction of the funeral home. After trial the district court held the place would be a nuisance and enjoined its construction. Defendant has appealed. We review the case de novo. Rule 334, Rules of Civil Procedure.

The intersection of 3d Avenue South and 12th Street where plaintiffs live and defendant wants to build the funeral home is surrounded at varying distances by residences. Many of the older and better homes in the city are near by. However, the main business district to the north and west has expanded to within a block from this intersection.

Central Avenue which runs westerly from 12th Street is the principal business street. Other streets that parallel Central Avenue south of it are also called avenues and are numbered from north to south commencing with 1st Avenue South, also essentially a business street west of 12th. North and south streets are called streets and are numbered from west to east. Business establishments face most of 12th Street between the east end of Central Avenue and 2d Avenue South and also for a distance north from Central.

Along 12th Street south from 2d Avenue are mostly dwellings, single or multiple. However, at the south side of 2d Avenue and the east side of 12th--the northwest corner of block 17 in which plaintiffs live--there is a Standard Oil filling station. There is one house, used for apartments, between the front Howard house (next to plaintiffs') and the oil station. About 200 feet east of this station is the Shimkat DeSoto-Plymouth garage with a north frontage of 50 feet on 2d Avenue. Between the oil station and the garage are two houses used for apartments and a row of nine single garages.

East of Shimkat's garage are three houses facing east on 13th Street. Roomers are kept in these houses. The southeast corner of block 17 is a playground belonging to a Catholic church [241 Iowa 853] and school which are across 13th Street in block 12, east of 17. Adjoining the playground is a row of ten individual garages. Between plaintiffs' home and the playground are two duplex houses, one behind the other. We have now referred to all the buildings on block 17. The territory south, east and west from plaintiffs' home is residential.

Plaintiffs purchased their property in 1937 for $8000. They recently spent $3500 to $4000 on improvements. Mrs. Dawson says its value was $26,000 to $30,000 in the summer of 1948. Dr. Dawson testifies they were offered $16,000 recently, apparently after the funeral home was planned. Mrs. Dawson says their property would have very little value as a home if the funeral parlor is built. A real estate agent testifies the funeral home would decrease the value of plaintiffs' residence and others in the locality around 25 per cent. Dr. Dawson says he would not expect to continue to live in his home if the funeral parlor is permitted.

Plaintiffs' main objection to the funeral home is the claimed depressing effect any such place in that location would have upon the members of their family. However, there is much testimony as to heavy

Page 729

traffic on 12th Street and it is urged as one basis for relief that traffic would be much worse if the funeral home were permitted.

Mrs. Dawson testifies the prospect of the funeral home has made her, her husband and three children, 11 to 14, very unhappy and they would be depressed by it. The living room, dining room and two bedrooms are on the south side of their house where they would look out at the funeral home. Dr. Dawson, a physician and surgeon, says his main objection to the funeral home is on account of his wife, children and guests who might be sensitive about proximity of such a place.

Aside from Dr. Dawson five physicians express the opinion that people, especially children and the sick, living near a funeral home are depressed by it. One says 'it is just the thought a dead body is in there.' A man and wife who live across 12th Street about a half block south of defendant's corner testify the funeral home would have a very depressing effect on them. There is some other such testimony and also that the funeral home would lower the value of nearby property.

[241 Iowa 854] Defendant plans to erect a building of brick and stone, 70 feet by 80 feet, two stories and basement, soundproof, airconditioned, estimated to cost $85,000. It would be back 20 feet from the sidewalk along 12th Street and 35 feet from the sidewalk along 3d Avenue, about 126 feet south of plaintiffs' home. Both 12th Street and 3d Avenue are 70 feet wide between sidewalks. Entrance to the funeral home would be from 12th Street. A U-shaped drive would permit vehicles to enter the grounds from 12th and leave on the same street. During a funeral the casket would be transferred to the sedan used for a hearse in an enclosure at the south side of the building--on the opposite side from plaintiffs' home. Defendant plans to landscape the grounds and to set out Norway spruce trees along the outside, except on the west, for privacy and seclusion. He intends to have a small neon sign in front of the funeral home.

Defendant testifies no embalming would be done at the new home nor would a supply of caskets be kept there. Embalming would be done at his present mortuary at 11th Street and 1st Avenue South, about 2 1/2 blocks from the new location. Caskets would be kept in defendant's present warehouse. Neither hearse nor ambulance would be kept in the new location. There would be attendants' sleeping quarters on the second floor of the new building and a chapel on the first floor where services may be held. However, about 80 per cent of the funerals defendant conducts are held in a Catholic church. The last three years defendant has had from 115 to 130 funerals a year.

At the time of trial in the spring of 1949 defendant held an option to purchase lot 4, block 16, east of the parcel he purchased in September and says he will buy lot 4 for parking space if permitted to build the funeral home. Lot 4 would give defendant a total frontage of 186 feet on 3d Avenue--about the same frontage plaintiffs have on that street.

At least eight witnesses for defendant say they have lived close to one or more of three funeral homes in Fort Dodge without experiencing any horror or depressed feeling because of the location and they observed no such effect upon their children or others. There is some other testimony of this nature. [241 Iowa 855] One of these other funeral homes is at the northeast corner of block 12, just east of block 17 in which plaintiffs live at the southwest corner. Another is at 10th Street and 1st Avenue South, about three blocks northwest of plaintiffs' home. The largest apartment building in Fort Dodge is across the street from this mortuary. We have referred to defendant's present establishment a block east of the one last mentioned. There are rented apartments in the building used for defendant's present mortuary.

A casket salesman who has traveled in Iowa testifies about 95 per cent of the funeral homes in the state are in a residential area and names many cities and towns where this is true.

Defendant also offered evidence as to the heavy traffic in the vicinity of his present mortuary and that it would be

Page 730

partly relieved by use of his newly acquired property.

The above is a sufficient indication of the evidence.

We now consider ordinance 748, apparently enacted pursuant to chapter 415, Code, 1946, I.C.A., and the permit issued defendant by the city thereunder, claimed to be a complete defense to this action. The ordinance establishes a restricted residence district in the six blocks between 3d and 6th Avenues South and between 12th and 14th Streets, makes it unlawful to erect or occupy therein any building except a residence, school or church without first securing a permit and provides no permit shall issue when 60 per cent of the resident owners in the district object. Defendant's property is in the northwest corner of this district. Plaintiffs' residence is just outside the district and block 17 is not restricted to residences. Any commercial building may be built there without violation of any ordinance.

Defendant applied to the city for a permit to build his funeral home, notice of hearing was published and hearing had at which the matter was referred to the city engineer who reported back that 64 resident owners in the district had signed a consent and 31 had...

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