Leland v. Turner

• Decision Date: 06 December 1924
• Docket Number: 25,614
• Citation: 230 P. 1061,117 Kan. 294
• Parties: C. A. LELAND et al., Appellees, v. W. E. TURNER and CHESTER TURNER, Partners, etc., Appellants
• Court: Kansas Supreme Court

230 P. 1061

117 Kan. 294

C. A. LELAND et al., Appellees, v. W. E. TURNER and CHESTER TURNER, Partners, etc., Appellants

No. 25,614

Supreme Court of Kansas

December 6, 1924

Decided July, 1924

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION -- Undertaking Establishment -- Located in Residential Section of City--Action to Enjoin Such Establishment May Be Maintained by Private Citizens of Such Section. Private citizens who own and occupy homes in a residential section of a city have an interest so different in character as well as in degree from the general public in the threatened and impending intrusion of an undertaking establishment in close proximity to their homes that they may maintain an action to enjoin such establishment as a private nuisance.

2. SAME -- Finding of Trial Court Sustained by Evidence. The trial court's finding of fact that defendants' undertaking establishment was located in a strictly residential district was supported by evidence which is conclusive on appeal.

3. SAME -- Judgment Making the Restraining Order Perpetual Affirmed. In a suit for an injunction against an undertaking establishment which had intruded into a residential district of a city, judgment as prayed for was entered against defendants pursuant to the following findings and conclusions of the trial court:

"That while an undertaking establishment of the character proposed to be operated by the defendants is not a nuisance per se its maintenance at the intersection of two principal residence streets in a residential district of a city is a nuisance as to owners of nearby property, whose property will be reduced in value by the maintenance and conduct of such business and whose comfort, repose and enjoyment of their homes will be materially diminished by the mental depression and distress caused by the constant going and coming of hearses, the not infrequent taking in and out of dead bodies, the frequent funerals, thoughts of the unknown dead in the morgue, the thought of autopsies, embalming and other matters commonly associated in the mind of the average person with a morgue, including a conspicuous sign, all of which to the extent that one's power of resistance to disease is lowered by mental depression and distress, render such persons, including the plaintiffs, more susceptible to disease and deprive the plaintiffs and their homes of the comfort, repose and enjoyment to which they are entitled, and that by reason of the foregoing the plaintiffs are entitled to a permanent injunction."

Held, not error.

Robert C. Foulston, A. M. Ebright, George Seifkin, Sidney Foulston, all of Wichita, B. R. Leydig, K. M. Geddes, and E. W. Grant, all of El Dorado, for the appellants.

C. A. Leland, L. J. Bond, J. B. McKay, and C. L. Harris, all of El Dorado, for the appellees.

OPINION

DAWSON, J.:

This was a suit by private citizens to enjoin the maintenance of an undertaking establishment in a residential section of the city of El Dorado.

For many years the defendants had pursued the occupation of embalmers and undertakers in El Dorado. Their establishment was conducted in the business section of the city, but the defendant, W. E. Turner, owned a tract of ground at a corner of Pine and Washington streets, on which was situated a barn and garage where defendants kept their hearses, ambulances, and other funeral equipment. Defendants removed the barn and garage, and applied to the city government for a permit to erect thereon a funeral home and morgue. A city ordinance of questioned validity forbade the establishment of "undertaking establishments, morgue or dead houses," etc., in the residential districts of the city. Defendants' application for a permit was refused, and they brought an action in mandamus to compel the city to issue it. That cause proceeded to judgment in favor of the city. Later defendants applied for and received a permit to erect a private residence of two stories and a basement on the same premises. A building which to all outward appearance was a typical private residence of the better sort was erected pursuant to such permit; its true character was kept secret by defendants while it was being constructed; but upon completion it was revealed that it was specially designed for the business of undertaking--an embalming workroom in the basement and a chapel for funeral services on the main floor, and for a private residence on the second floor only. Defendants set about the prosecution of their business of embalming, undertaking and funeral conducting at this new establishment, and this lawsuit followed.

Issues were joined, testimony was heard at length, and judgment was entered for plaintiffs. The trial court's findings and judgment read:

"That while an undertaking establishment of the character proposed to be operated by the defendants is not a nuisance per se, its maintenance at the intersection of two principal residence streets in a residential district of a city is a nuisance as to owners of nearby property, whose property will be reduced in value by the maintenance and conduct of such business and whose comfort, repose and enjoyment of their homes will be materially diminished by the mental depression and distress caused by the constant going and coming of hearses, the not infrequent taking in and out of dead bodies, the frequent funerals, thoughts of the unknown dead in the morgue, the thought of autopsies, embalming and other matters commonly associated in the mind of the average person with a morgue, including a conspicuous sign, all of which to the extent that one's power of resistance to disease is lowered by mental depression and distress, render such persons, including the plaintiffs, more susceptible to disease and deprive the plaintiffs and their homes of the comfort, repose and enjoyment to which they are entitled, and that by reason of the foregoing the plaintiffs are entitled to a permanent injunction.

"It is therefore by the court ordered and adjudged and decreed, that the defendants and each of them and their agents, servants and employees are hereby permanently enjoined and restrained from equipping or in any way operating or maintaining a funeral home or morgue or mortuary or undertaking establishment on the [premises] described."

Defendants assign various errors, first urging that plaintiffs, as private citizens, had no right to maintain this action. The argument is made that the maintenance of a funeral home and morgue on defendants' premises would not cause plaintiffs to suffer any annoyance different in kind from that sustained by the general public, and consequently under familiar precedents they could not maintain this action. Under the evidence the court is disinclined to sustain this contention. The maintenance of an undertaking establishment and funeral home at the corner of Pine and Washington streets is no annoyance to the entire community of El Dorado. The business is not a nuisance per se. Such an institution serves an invaluable need in modern life. But it may well be that an institution, notwithstanding its existence is a necessity, may be of such a disagreeable character that it should not be located in a residential quarter of a city. The people of the city at large may have no grievance, actual or theoretical, at its establishment in a particular locality, but the people who reside in the immediate vicinity may have just ground of complaint at its existence. This proposition has been frequently noted in our own cases and those of other jurisdictions. In Stotler v. Rochelle, 83 Kan. 86, 109 P. 788, it was held that the establishment of a cancer hospital in a residential neighborhood, in the near proximity of dwellings, might be enjoined at the instance of a private citizen owning and occupying adjacent property. In the opinion it was said:

"Whether in a given case the obligation so to use one's own property as not to injure another's has been or is about to be so far transgressed as to justify the interference of a court is a question to be determined as a matter of reason, fairness and justice under all the circumstances. The injury need not extend beyond annoyance, if in view of all the facts it is unreasonable. . . .

"The question is not whether the establishment of the hospital would place the occupants of the adjacent dwellings in actual danger of infection, but whether they would have reasonable ground to fear such a result, and whether, in view of the general dread inspired by the disease, the reasonable enjoyment of their property would not be materially interfered with by the bringing together of a considerable number of cancer patients in this place. However carefully the hospital might be conducted, and however worthy the institution might be, its mere presence, which would necessarily be manifested in various ways, would make the neighborhood less desirable for residence purposes, not to the over-sensitive alone, but to persons of normal sensibilities." (pp. 88, 91. See, also, Winbigler v. Clift, 102 Kan. 858, 172 P. 537; Densmore v. Evergreen Camp No. 147, 61 Wash. 230, 31 L. R. A., n. s., 608, 112 P. 255.)

In 20 R. C. L. 455, it is said:

"Whether the business of preparing dead bodies for burial is to be deemed a nuisance depends on the locality in...