Mitchell v. Bearden, 73--177

• Decision Date: 21 January 1974
• Docket Number: No. 73--177,73--177
• Citation: 503 S.W.2d 904,255 Ark. 888
• Parties: Richard MITCHELL, d/b/a Mitchell Funeral Home, Appellant, v. George BEARDEN, Shirley Bearden, et al., Appellees.
• Court: Arkansas Supreme Court

Page 904

503 S.W.2d 904

255 Ark. 888

Richard MITCHELL, d/b/a Mitchell Funeral Home, Appellant, v. George BEARDEN, Shirley Bearden, et al., Appellees.

No. 73--177.

Supreme Court of Arkansas.

Jan. 21, 1974.

L. V. Rhine, Paragould, Douglas Bradley and Jon R. Coleman, Jonesboro, for appellant.

C. Joseph Calvin, Rector, for appellees.

FOGLEMAN, Justice.

Appellant asserts that the chancery court erred in enjoining him from constructing a funeral home in Rector on a lot acquired by him for that purpose. The error, according to appellant, is in the court's finding that the vicinity in which the funeral home was to be located was an expanding exclusive residential area which was not in transition to business uses, so that the funeral home would constitute a nuisance. We affirm because we cannot say this finding was clearly against the preponderance of the evidence.

The importance of this finding is delineated in such cases as Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906; Howard v. Etchieson, 228 Ark. 809, 310 S.W.2d 473; and Blair v. Yancey, 229 Ark. 745, 318 S.W.2d 589. Through these cases, we have established these general principles, with regard to preventing establishment of funeral homes: A funeral home is not a nuisance per se. The intrusion of a funeral home into an exclusively residential district would ordinarily constitute a nuisance. It may be a nuisance in an area essentially residential in character. If, however, transition of the district from residential to business has so far progressed that the value of surrounding property would be enhanced as business property, rather than depreciated as residential property, the establishment of a funeral home would not constitute a nuisance.

Decisions recognizing the right of property owners to prevent the intrusion of a funeral home into a residential district are based upon the premise that the continuous suggestion of death and dead bodies tends to destroy the comfort and repose sought by homeowners. See Powell v. Taylor, supra. The critical factor in determining the application of the general principles appears to be the effect on property values because of the location of the funeral home. Considerable weight is also given to the predominance of either commercial or residential property in the area. We cannot agree with appellant's analysis of our holdings, insofar as he interprets them to turn upon the manner of operation of a funeral home. While this could become a factor in determining whether injunctive relief should be granted, it is not determinative, and injunctive relief has been approved without any indication that the manner of operation would be in anywise contrary to prescribed standards and regulations.

The lot is question here is 170 180 and lies on the west side of Woodland Heights Drive (formerly Old Cemetery Road) in Rector, between two residences. All of the block on the west side of this drive between Second Street and Woodland Heights Cemetery, except for appellant's lot, is occupied by residences. All these dwelling houses were constructed after the cemetery was established. There are four homes between appellant's lot and the cemetery, the entrance of which is approximately 600 feet south of his lot. None of the property east of the street on which appellant's lot faces is developed. It is presently being used as a cow pasture. All the land in the block in which the Mitchell lot is located lying west of that lot and the homes on each side of it is presently used for pasture. There are also residences, however, facing Second Street and lying west of the residence at the corner of Second and Woodland Heights Drive. There had been a 'camper' parked northwest of this intersection on the corner lot and a mobile trailer home on the lot just north of that. ¹ There is also a machine shop on the north of this block near its western boundary on Idlewild Street. It was built 20 to 30 years ago--long before most of the residences in the area. In the next block to the north there was a dwelling house is which there was a beauty shop and another in which there is an antique shop occupying part of the garage and carport. Both faced Woodland Heights Drive, and there is evidence indicating the operators of these shops live in the dwellings in which they are located. There was testimony that the antique shop was...