Higgins v. Bloch

• Decision Date: 21 May 1925
• Docket Number: 1 Div. 370
• Citation: 213 Ala. 209,104 So. 429
• Parties: HIGGINS et al. v. BLOCH et al.
• Court: Alabama Supreme Court

104 So. 429

213 Ala. 209

HIGGINS et al. v. BLOCH et al.

1 Div. 370

Supreme Court of Alabama

May 21, 1925

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill in equity by Jacob D. Bloch and others against John R. Higgins and another, to prevent the erection or maintenance of a nuiance. From a decree overruling demurrers to the bill respondents appeal. Affirmed.

Smiths Young, Leigh & Johnston, of Mobile, for appellants.

Gaillard Mahorner & Arnold, of Mobile, for appellees.

MILLER J.

This is a bill in equity by Jacob D. Bloch and others against John R. Higgins and Harry Courtney, individually and as partners under the name of Higgins & Courtney. The bill seeks a permanent injunction against respondents, preventing them from erecting or maintaining or continuing the business of undertakers and funeral directors at a certain place described in the complaint, on the ground it is or will be a continuing nuisance to each of them and others, and to their homes, on account of its close proximity to their residences, and on account of the manner in which such business is intended to be carried on at this place by the respondents.

The respondents demurred to the bill of complaint, which demurrers were by decree of the court overruled, and respondents prosecute this appeal from that decree, and it is the error assigned.

The erection or continuance of a private nuisance may be enjoined and abated by a court of equity at the instance of the party or parties aggrieved when the injuries or inconveniences or damages in their nature are permanent or continuous or constantly recurring. City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412. And where the consequences of a nuisance about to be erected or commenced will be irreparable in damages, and such consequences are not merely possible but to a reasonable degree certain, a court of equity may interfere to arrest the nuisance before it is completed. Section 9273, Code 1923. A private nuisance may injure either the person or property, or both. Section 9276, Code 1923.

The appellants insist their demurrers raising these propositions on the bill of complaint should have been sustained--(1) the undertaking business is not a nuisance per se; (2) that the sensitive nature of complainants was not sufficient ground for an injunction, that consideration should be given to the effect of the undertaking business upon persons of ordinary sensibilities; and (3) the bill does not allege the business was being conducted or managed or would be conducted or managed in such manner as would constitute it a nuisance.

The business of funeral directors and undertakers is lawful in its nature and necessary for the welfare of society. Some of the objects of this business are to embalm, care for, and dispose of dead human bodies as averred in the complaint. There is established by statute a state board of embalming, with authority to issue license to a person to practice the science of embalming and the care and disposition of the dead when the requirements of the statutes are complied with by the applicant. Sections 688-695, Code 1923.

It is true the business of funeral directors and undertakers is lawful and not a nuisance per se, but it may become a nuisance if it hurts, inconveniences, or damages another or injures his person or his property. Sections 9271 and 9276, Code 1923, and authorities supra. The inconvenience caused by it must not be fanciful or such as would affect only a person of a fastidious taste. It should be such as would affect an ordinary, reasonable man. Inconvenience, as here used, includes to disturb and to discomfort, as defined by Mr. Webster. Sections 9271 and 9276, Code 1923; City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020.

A business, lawful in its nature, and not a nuisance per se in one locality, may become or be a nuisance per se when erected and maintained in certain other localities. The particular location of the business and its management and the time of its erection may determine whether it is or not a nuisance per se. English v. P.E.L. & M. Co., 95 Ala. 267, 10 So. 134; Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453; Cemetery Co. v. McEvers, 168 Ala. 535, 53 So. 272.

This cause is here on demurrer to the bill of complaint, and the facts averred therein must be treated as true by us. City of Selma v. Jones, 202 Ala. 82 headnote 7, as it appears on page 84, 79 So. 476, L.R.A.1918F, 1020.

On November 1, 1924, the respondents purchased the Leinkauf lot and brick residence thereon, located on the north side of Government street and on the corner of Government and Scotts streets, in the city of Mobile. This lot and brick dwelling thereon has been used prior to its sale to respondents for many decades as a place of residence. It is clear and evident from the averments of the bill that respondents intend to and are preparing to convert this dwelling into an undertaking establishment "for the purpose of carrying on the general business of undertakers and funeral directors, the same as is generally carried on in the city of Mobile, and have declared their fixed purpose of carrying out their said intentions at once." Section 6 of the bill of complaint alleges the manner in which the business of undertakers "is generally carried on in the city of Mobile," which section 6 appears in full in the report of this case. Complainants notified respondents that this business so to be conducted would constitute a nuisance in that locality and would be a hurt, inconvenience, and damage to complainants and to their property, and they would resist placing and carrying on this business there; and they aver that respondents have since "begun and are carrying on work upon the property to convert the improvements thereon from a place of residence to an undertaker's establishment as aforesaid, for the purposes hereinbefore set forth."

This lot joins the residence lot of complainant Bloch, and is about 3 feet from his residence. The brick building on the lot to be used for this business is less than 10 feet from his residence on the adjoining lot. Bloch and...