Jones v. Trawick

• Decision Date: 16 November 1954
• Citation: 75 So.2d 785,50 A.L.R.2d 1319
• Parties: Edmond JONES et al., Appellants, v. J. B. TRAWICK et al., Appellees.
• Court: Florida Supreme Court

Page 785

75 So.2d 785

50 A.L.R.2d 1319

Edmond JONES et al., Appellants, v. J. B. TRAWICK et al., Appellees.

Supreme Court of Florida, En Banc.

Nov. 16, 1954.

Coe & Coe, Pensacola, for appellants.

Forsyth Caro, Pensacola, for appellees.

ROBERTS, Chief Justice.

The question presented on this appeal is whether a cemetery proposed to be located in a predominantly residential area may be enjoined as a private nuisance by the adjacent home owners. The facts giving rise to this question are stated in the dissenting opinion by Mr. Justice Thomas.

We are cognizant of the rule that cemeteries are not nuisances per se and that the present weight of authority in this country is, as stated in 10 Am.Jur., Cemeteries, Sec. 16, p. 498, that 'A cemetery does not constitute a nuisance merely because it is a constant reminder of death and has a depressing influence on the minds of persons who observe it, or because it tends to depreciate the value of property in the neighborhood, or is offensive to the aesthetic sense of an adjoining proprietor.' We are, however, unable to reconcile the quoted rule with that applicable to funeral homes and undertaking establishments, where both are proposed to be located in a residential area. With respect to the latter establishments, there can be no doubt that, as stated by the annotator in 87 A.L.R. at page 1061: 'The greater weight of recent authority is to the effect that the establishment and operation of an undertaking business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death, appreciably impairing their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance.' See also 66 C.J.S., Nuisances, § 72, p. 819; 54 Am.Jur., Undertakers and Embalmers, Sec. 7, p. 512; Jack v. Torrant, 136 Conn. 414, 71 A.2d 705; Mutual Service Funeral Homes v. Fehler, 254 Ala. 363, 48 So.2d 26; Frederick v. Brown Funeral Homes, 222 La. 57, 62 So.2d 100; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, 508, L.R.A.1918A, 825; Williams v. Montgomery, 184 Miss. 547, 186 So. 302, 303; Brown v. Arbuckle, 88 Cal.App.2d 258, 198 P.2d 550. The rule is stated in Cooley on Torts (4th Ed.) Vol. 3, p. 18, sec. 435, as follows:

'The inherent nature of an undertaking establishment is such that, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such a district should not be permitted over the protest of those who would be materially injured thereby.'

As pointed out in Jordan v. Nesmith, 132 Okl. 226, 269 P. 1096, 1099, 'The basis of injunctive relief by the courts in these cases (involving undertaking establishments) seems, in the last analysis, to have been the fact that constant reminders of death, such as an undertaking establishment and the activties connected with it, impair in a substantial way the comfort, repose, and enjoyment of the homes in that immediate neighborhood.'

This court recognizes that the law of private nuisance is bottomed on the fundamental rule that every person should so use his own property as not to injure that of another, as expressed in the maxim sic utere tuo ut alienum non laedas, Reaver v. Martin Theatres of Florida, Inc., Fla., 52 So.2d 682, 683, 25 A.L.R.2d 1451, and that 'Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable, is a 'nuisance' and may be restrained.' Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 198 So. 819.

While this court has not passed directly on the question of whether the proposed construction of a funeral home in a residential area would be enjoined as a private nuisance at the instance of a neighboring home owner under the general rule stated above, we have no doubt that such would be the holding of this court. Compare State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541, 544, in which it was stated that 'it must be accepted as a matter of common knowledge' that contact with a funeral home may result in great discomfort, depression and unhappy thoughts. And see Philbrick v. City of Miami Beach, 147 Fla. 538, 3 So.2d 144. Nor has this court considered the question of whether a cemetery is a nuisance. This being a case of first impression in this court, we have decided to apply to cemeteries the rule applicable, by the great weight of authority, to funeral homes and embalming establishments, quoted above. In our opinion, their impact on a residential community is so similar as to make the application of a different rule entirely unrealistic. The Supreme Court of South Carolina, in Young v. Brown, 1948, 212 S.C. 156, 46 S.E.2d 673, 679 has reached the same conclusion. In holding that a cemetery located in a residential area is a 'private nuisance', although not detrimental to health or offensive in any physical sense, the court said:

'It may be readily conceded that the mere fact that a body is buried near a residence is not reasonably calculated to cause a depressed feeling or affect the cheer and happiness of the home and we may assume, without deciding, that the constant view of markers or tombstones over the graves would probably not produce a depressing effect upon the mind of the average person, but these are not the only incidents connected with a cemetery. There is the passage of the funeral procession with its mourners and the last rites at the grave followed by frequent visits of the bereaved persons, all of which are conducive to depression and sorrow and when constantly recurring in close proximity to a residence may deprive the home of the comfort and repose to which the owner is entitled. Proper respect for the dead and those in grief and sorrow naturally imposes a restraint at such times on the usual laughter and play of children and social and family gatherings could not be held under cheerful srroundings. The foregoing circumstances may not affect the comfort and repose of the home to the same degree as a funeral home adjacent to or across the street from a residence but there do exist in connection with a cemetery many of the considerations which have prompted the courts to declare a funeral home a private nuisance.'

The evidence introduced in the court below was ample to sustain the plaintiffs' allegations that the existence of a cemetery would substantially interfere with the comfort, repose and...