Kirk v. Mabis
Decision Date | 14 February 1933 |
Docket Number | 41493 |
Citation | 246 N.W. 759,215 Iowa 769 |
Parties | CLYDE KIRK, Appellant, v. A. H. MABIS et al., Appellees |
Court | Iowa Supreme Court |
Appeal from Polk District Court.--JOHN J. HALLORAN, Judge.
Suit in equity to enjoin as a nuisance the establishment and operation of a funeral home by the defendant Roy W. Caldwell on certain premises adjoining the residence of the plaintiff the lot upon which the proposed funeral home was to be established being located in a district which had, by the zoning ordinance of the city of Des Moines, Iowa, been designated as a commercial district. Decree was entered dismissing the plaintiff's petition and dissolving the temporary injunction, and plaintiff appeals. The opinion states the facts.
Affirmed.
Stipp Perry, Bannister & Starzinger and Edward Robinson, for appellant.
Vernon W. Lynch, Strock, Sloan & Herrick, George P. Comfort Chauncey A. Weaver, and C. R. S. Anderson, for appellees.
The appellant Clyde Kirk has owned, and, together with his family, consisting of his wife and two children, has occupied as his home, the residence locally known as 2118 University Avenue, in the city of Des Moines, for a period of better than twenty years. The said premises face University Avenue and extend 47 feet in width and 192 feet in depth. The Mabis property, which adjoins the Kirk premises immediately to the east, comprises the large brick residence and grounds which constitute the southwest corner of 21st Street and University Avenue. Said property, which faces 21st Street and adjoins the Kirk property for the full depth of 192 feet, is described legally as follows: The west 47 feet of Lot 1 and the west 47 feet of the north 75 feet of Lot 2, in Block 1, of Cottage Grove Avenue Addition, now included in and forming a part of the city of Des Moines, Iowa.
On the 24th day of October, 1931, the appellee Caldwell purchased from the appellees A. H. Mabis and Mrs. A. H. Mabis the following described real estate, to wit: the east 210.5 feet of Lot 1, Block 1, Cottage Grove Avenue Addition, an addition now included in and forming a part of the city of Des Moines, Polk County, Iowa. The distance between the Kirk house line and the Mabis rear lot line is 15 feet, of which distance the Kirk driveway occupies a width of 8 feet. A space of ground 4 or 5 feet in width separates the Kirk and Mabis driveways. The Kirk house is so constructed that the living room, dining room, and a bedroom are on the east side, facing the Mabis residence.
On the 26th day of October, 1931, the appellee Caldwell entered into possession of said premises and occupied the same for use as an undertaking establishment. On that date, October 26, 1931, he conducted at that location one funeral. On the 28th day of October, 1931, the department of buildings of the city of Des Moines issued to appellee Caldwell a building permit for certain alterations of said premises for use as a funeral home, and on the same date issued to him a certificate of occupancy and compliance for use of the property as a funeral establishment. The appellant appeared in the office of the department of buildings the day the permit was issued, and objected to the issuance of said permit, and when the permit was issued, filed an appeal. On the 29th day of October, 1931, appellant filed a petition for an injunction and a restraining order against the appellees, and on the same date the court entered a temporary injunction restraining the use of said premises as an undertaking and embalming establishment. The appellees filed a motion to dissolve the temporary injunction and filed separate answers. The appellee Roy W. Caldwell denied each and every allegation contained in the petition not admitted in his answer. He admitted that he is in the undertaking business, doing business under the trade name and style of Caldwell Funeral Home, and admitted that he purchased from the appellee Mabis certain real estate described in the appellant's petition; and he further pleaded as a defense that the property which he purchased and upon which he intends to locate his funeral home is included in the property covered by the zoning ordinance known as Ordinance No. 3619, duly passed by the city of Des Moines, and that said ordinance was in full force and effect on October 24, 1931, and that the property which he has purchased has been designated by said ordinance as in a commercial district. The said zoning ordinance of the city of Des Moines in force and effect on October 24, 1931, designates Lot 1, Block 1, of Cottage Grove Avenue Addition, as commercial. Caldwell further pleaded as a defense the fact that a permit had been issued by the proper officers of the city of Des Moines, authorizing and directing the use of the premises as a funeral home. Appellee Caldwell purchased the property hereinbefore described, upon which he is operating his funeral home, for the sum of $ 15,000 from the appellees A. H. Mabis and Mrs. A. H. Mabis.
The appellant has argued with a great deal of force that the establishment of a funeral home in a residential district is a nuisance. The only injury complained of by the appellant is that the carrying on of the undertaking and embalming business in the immediate vicinity of appellant's home had a depressing effect upon the appellant's family, by reason of its frequent reminder of mortality. The injury complained of was mental, rather than physical and was one which did not affect all persons alike.
The authorities upon the question of whether a funeral home in a residential district is or is not a nuisance are very much divided. The appellant cites various cases in his brief. The main cases cited are discussed in the case of Stoddard v. Snodgrass, a recent case decided by the Supreme Court of the state of Oregon and found in 241 P. 73, and also in 43 A. L. R. 1160, 1163. It would be presumptuous of us to attempt to improve upon the treatment of these cases by the Supreme Court of Oregon. Of these cases the Supreme Court of Oregon says:
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