Overby v. Piet, E-303
| Decision Date | 30 April 1964 |
| Docket Number | No. E-303,E-303 |
| Citation | 163 So.2d 532 |
| Parties | Eber V. OVERBY, Jean D. Overby, Robert E. Greggs, Claudia E. Greggs and St. Augustine Management Company, a Florida corporation, Appellants, v. Frank T. PIET et al., Appellees. |
| Court | Florida District Court of Appeals |
Upchurch & Upchurch, St. Augustine, for appellants.
Robert H. Turner, Jr., St. Augustine, for appellees.
The defendants, Mr. and Mrs. Overby, Mr. and Mrs. Greggs and St. Augustine Management Co., have appealed from a final decree permanently enjoining them from using certain lands as a cemetery.
The Overbys and Greggses purchased an abandoned 2o acre farm located two or three miles south of St. Augustine for the purpose of building and operating a memorial gardens type cemetery. In an effort to comply with the requirements of F.s. Sections 559.30-559.47, F.S.A. The Cemetery Act, they procured the written consent of all adjoining property owners and the written consent of two of the three property owners whose lands were across the road from the proposed cemetery. They also secured the approval of the Board of Health and the Board of County Commissioners. The individual defendants employed a cemetery architect to draw the plans and chartered the corporate defendant to build and operate the cempetery. In addition to the purchase price of the property, several thousand dollars had been spent on plans, maps, topographical survey and other necessary items.
After clearing and grading operations had begun, this suit was filed to enjoin the construction of the cemetery on the grounds that it constituted a private nuisance because it would 1. devaluate plaintiffs' property, 2. render their water supply unfit for human consumption, and 3. emotionally disturb them by being a constant reminder of death. The chancellor found that the allegations under the first two grounds were not sustained by the evidence so this appeal was bottomed upon the third ground only. In his written opinion the chancellor indicated his inclination toward the view expressed in the dissenting opinion of Jones v. Trawick, 1 but being bound by the majority opinion, decreed a permanent injunction.
In Jones v. Trawick, a case of first impression, the Florida Supreme Court extended to cemeteries the rule theretofore applied, by the great weight of authority, to funeral homes and embalming establishments. This rule as stated in that case is:
"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 impariring their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance." [Emphasis supplied.]
The first requirement of the rule is that the proposed cemetery, to be a nuisance, must be located in a 'purely residential section' since the nuisance is the substantial interference with the comfort, repose and enjoyment of the home. Appellants here contend that the able chancellor misinterpreted this requirement when he found that area was 'predominately residential.' References in the Trawick opinion to 'residential area' and 'predominately residential' were apparently construed by the chancellor in the instant cause as meaning that among the improvements made upon the land in the surrounding area, residences were predominate.
In the Trawick case Associated Properties, Inc. purchased a tract of land, subdivided it, sold the lots and executed deeds of conveyance carrying covenants running with the land restricting the use of most of the lots to residences for Negroes. One block was not divided into lots, bore no designation, was excluded from the restrictions, and though there was nothing in writing to bind the owners, Associated Properties made it widely known to the purchasers that it would be used as a park or recreation filed. However, this block was sold to the defendants who established it as a cemetery. There is no evidence that any homeowner in the area or any of the large number of adjacent homeowners who filed the complaint to restrain the use of the property as a cemetery had ever consented to the cemetery. Six funerals had taken place, and the noisy lamenting of the Negro mourners was a source of disturbance to at least one plaintiff.
In the instant case the proposed cemetery is a 23 acre tract located on the old Moultrie Road about two or three miles south of St. Augustine. The complaining plaintiffs were: Mr. and Mrs. Frawley who owned 20 acres of land upon which was located...
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State ex rel. Cunningham v. Feezell
...is to be put in a Rural area where a majority of homes are also used for business enterprises, it will not be enjoined. Overby v. Piet, 163 So.2d 532 (Fla.App.1964). Finally, petitioners allege that defendant was not authorized or licensed to do business in this State and this particular co......