Lowe v. Prospect Hill Cemetery Ass'n

• Decision Date: 23 February 1899
• Parties: LOWE ET AL. v. PROSPECT HILL CEMETERY ASS'N ET AL.
• Court: Nebraska Supreme Court

58 Neb. 94

78 N.W. 488

LOWE ET AL.

v.PROSPECT HILL CEMETERY ASS'N ET AL.

Supreme Court of Nebraska.

Feb. 23, 1899.

Syllabus by the Court.

1. The evidence set out in the opinion, and held to sustain the finding of the district court that the proposed use by appellant of its ground for interring therein dead bodies would probably result in contaminating the waters of appellees' wells with disease germs, and thus endanger the health and lives of appellees and their families.

2. A use made by one of his property which works an irreparable injury to the property of his neighbor, or whereby the unwritten, but accepted, law of decency is violated, or which deprives his neighbor of the reasonable and comfortable use of his property, or which will probably endanger the health and life of his neighbor, is a private nuisance, and may be enjoined.

3. In such a case, to authorize the injunction, it must be established by satisfactory evidence that the injury threatened or apprehended will probably result.

4. A court of equity has jurisdiction to enjoin a threatened injury, whenever its nature is such that it cannot be adequately compensated in damages, and its continuance would occasion a constantly recurring grievance.

5. Held, under the established facts, that appellees were without an adequate remedy at law for the redress of the apprehended injuries of which they complained.

6. Neither courts nor legislatures, except on the demand of the state and for its use, can compel one citizen to sell his property, even for its full value, to his neighbor for the latter's private use.

7. The citizen is entitled to the use and enjoyment of the light and the air over, and the water beneath, the surface of his premises, and, in order that his neighbor may devote his property to a particular use, cannot be compelled to surrender those rights, even if fully paid therefor.

8. The object of an action to enjoin a private nuisance is to prevent the defendant from using his property in such a manner as will disturb the plaintiff in the reasonable use and occupation of his property.

9. A tenant for life or years, rightfully in possession of real estate, may maintain such an action.

10. A defense in the nature of a confession and avoidance, to be available, must be pleaded.

Appeal from district court, Douglas county; Powell, Judge.

Suit by John Lowe and others against the Prospect Hill Cemetery Association and others. Judgment for plaintiffs, and defendants appeal. Affirmed.C. A. Baldwin, Wm. D. Beckett, and E. Wakeley, for appellants.

Francis A. Brogan, for appellees.

RAGAN, C.

The Prospect Hill Cemetery Association is a corporation organized under the laws of the state. As its name indicates, it is engaged in the business of interring the dead, and in conducting and maintaining a cemetery, in the city of Omaha. The space on the map below marked “Prospect Hill Cemetery” indicates the site of an old cemetery belonging to this corporation, which has been used for burying the dead for a long number of years; was established when the city of Omaha was a frontier town; and, at the time such cemetery was established, it was outside the residence portions of said city. The space on the map immediately south of Prospect Hill Cemetery, marked “Addition to Cemetery,” also belongs to the Prospect Hill Cemetery Association, and the land which that space represents is used by the cemetery association, and has been for a number of years, as a part of the original Prospect Hill Cemetery. The cemetery association also owns the strip south of the addition, and marked on the map, “Land proposed to be used for burials.” The association acquired the legal title to this property in 1895, and was taking steps to cause the same to be surveyed into burial lots, intending to sell those lots and bury therein the dead, when Jesse Lowe, Martin R. Pruitte, and Nathan Stevens, the owners of lots marked “L,” “L,” “S,” and “P” on map, in behalf of themselves, and all others similarly interested and situated who might desire to come into the suit and contribute to the expenses thereof, brought this suit to the district court of Douglas county to enjoin the cemetery association from interring, or permitting to be interred, dead bodies in said strip of land south of the addition to said cemetery. Lowe and others based their right to the injunction asked on two grounds: (1) That interments in the strip of land proposed to be devoted to cemetery purposes would pollute and poison the water in the wells of Lowe and others, and that in other wells in the vicinity, in that disease germs or microbes would be carried from the decomposing interred bodies, by moisture seeping from the graves through the pores of the soil, into the wells; that thereby the health and lives of the inhabitants of such locality would be endangered, the comfortable use and enjoyment of their property would be interfered with, and the neighborhood and locality would be rendered unhealthful, and the real estate, which in that vicinity was used exclusively for residence purposes, would be rendered valueless, and therefore the use by the said cemetery association of said lands for interring therein dead bodies would constitute a private nuisance at common law. (2) That the using of said land by said cemetery association for interring therein dead bodies would violate the ordinances of the city of Omaha. The district court entered a decree in accordance with the prayer of the petition of Lowe and others, and the cemetery association has appealed.

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1. We dispose of the second ground on which the application for injunction was based first. We cannot see that it would subserve any useful purpose to set out in this opinion the history of the title of the cemetery association to this piece of real estate and the argument of the association that to devote it to the purposes of interring therein dead bodies would not violate the ordinances of the city of Omaha. We have carefully studied both the history and the argument and have not the slightest doubt that the ordinances of the city of Omaha forbid the cemetery association from interring dead bodies in the strip of land in controversy; and, without determining whether the appellees made such a showing as would entitle them to this injunction because the interring of dead bodies in the land by the cemetery association would violate the ordinances of the city of Omaha, we proceed to inquire whether the decree of the district court can be sustained upon the ground that the use proposed to be made by the cemetery association of its ground would constitute a private nuisance at common law, and that the appellees were entitled to the injunction given them upon that ground.

2. The appellant earnestly insists that the evidence in the record is insufficient to support the court's finding that the use of this strip of land by the cemetery association for interring therein dead bodies would probably or likely pollute and poison the water in the wells in the vicinity as claimed, and therefore the evidence does not sustain the court's finding that the proposed use of this land by the cemetery association would constitute a private nuisance. The undisputed evidence is that Prospect Hill Cemetery is located on the crest of a hill; that the ground slopes rapidly in all directions; that the original cemetery, the addition, and the strip of land now proposed to be devoted to cemetery purposes are all higher than the property of the appellees and the other property in that locality; that the property on the east, south, and west of the strip of land proposed to be devoted to cemetery purposes is laid out in residence lots; that many of these lots are occupied for residence purposes; that the city of Omaha, in the last 15 years, has so increased in population that the cemetery grounds are now within the residence district of the city; that the ground proposed to be devoted to cemetery purposes is sufficient for 2,000 interments. There is in the record a seeming conflict of evidence as to the nature of the subsoil or the earth underlying the cemetery and the lands in its immediate vicinity. The witnesses for the appellant made it out a dry, compact clay, without seam, fissure, or pore; the witnesses for appellees, a porous one,--a loess containing about 80 per cent. of silica, and possessing great absorptive properties and powers. But the witnesses of the appellant on this subject were well and grave diggers and graders; they had no geological or scientific knowledge of the nature and properties of this soil. The evidence of appellees on this subject was scientific; was of a character that convinces the understanding and convicts the judgment, and leaves no doubt in the mind that the earth under the cemetery and the lands in its vicinity is a clay, highly siliceous, highly porous, and having great absorptive powers. In a geological sense, it is loess. It is not an impervious soil. No “hardpan,” for the depth of more than 100 feet, is found below the surface of the earth at this cemetery. But this conclusion does not impugn the motives or veracity of appellant's witnesses. They did not see in this earth the silica as segregated sand, and thought there was none. They did not see the seams and fissures in the earth, and concluded it was compact, and practically impervious. Their evidence, then, while honest enough, was, on this subject, of little value, because of their lack of scientific knowledge in the premises. No doubt these witnesses, and thousands of others, would honestly testify that a drop of clear water or a rosebud had in it no living organisms, and base their evidence on the fact that, though they had seen millions of rosebuds and drops of water, they had never observed a living thing in either. These witnesses would perhaps have testified that a piece of polished steel had no pores in it; but what would this evidence be worth against that of a...