Potter v. Bryan Funeral Home, 91-86
| Decision Date | 04 November 1991 |
| Docket Number | No. 91-86,91-86 |
| Citation | 817 S.W.2d 882,307 Ark. 142 |
| Parties | Cecil POTTER, Ruth Potter, Roberta Stephens, Bob Downing and Dorothy Downing, Appellants, v. BRYAN FUNERAL HOME, Appellee. |
| Court | Arkansas Supreme Court |
Richard L. Castleman, Pocahontas, for appellants.
Bill W. Bristow, Joensboro, for appellee.
Appellants appeal the Lawrence County Chancery Court's dismissal of their request to enjoin as a nuisance the appellee's placement of a funeral home in appellants' neighborhood. They argue the chancellor was clearly erroneous in finding that the funeral home was not a nuisance. Also, the appellants contend the chancellor erred in inspecting or viewing the proposed site and other property without first obtaining the consent of the parties.
The facts are largely undisputed. Appellee planned to convert a two-story house into a funeral home to be located on the southwest corner of the intersection at U.S. Highways 62/63 and State Highway 115 in the town of Imboden. Many of the appellants' houses are situated across from the proposed site and along the north side of Highway 62/63. Other residences are located on the south side of 62/63 and are both east and west of appellee's proposed funeral home. Four or five commercial businesses are nestled in this same area. A used car lot owned by the town's mayor is situated on the northwest corner of the same block where the appellee proposes to establish its business. A repair shop is directly behind the car lot. A car wash and a convenience store are located on the north side of Highway 62/63 within two blocks east of the funeral home site. And finally, a beauty shop is located approximately two blocks from appellee's site and about one block south of the corner where the car lot is located. In addition to these businesses, a home for the elderly and a federal housing project are approximately within the general two-block area of the proposed site.
At trial, appellants presented testimony that a funeral home would lower their property values and would also interfere with the peaceful enjoyment of their homes because the business would be a constant reminder of death and dead bodies. Appellee offered evidence that classified the area as being mixed residential and commercial. Appellee argued that the appellants would not be any more adversely affected by the placement of a funeral home in the neighborhood than they already had been by having the other businesses already located in the area. Based on the foregoing evidence, the chancellor held that the establishment of a funeral home on the proposed site would not be a nuisance.
This court has established the following 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 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 the 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.
Mitchell Funeral Home v. Bearden, 255 Ark. 888, 503 S.W.2d 904 (1974); see also Miller-Elston Mortuary v. Paal, 261 Ark. 644, 550 S.W.2d 771 (1977); Blair v. Yancy, 229 Ark. 745, 318 S.W.2d 589 (1958); Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906 (1954).
While appellants take issue with the chancellor's finding that the two-block area surrounding the proposed site is mixed residential and commercial, we conclude the evidence clearly supports such a finding. In fact, appellants concede that some of the businesses located in the area actually became operational after appellants' houses had been built. Appellants point to language in the Bearden case when arguing that the law does not require the area surrounding a proposed funeral home site to be "exclusively" residential before a funeral home can be enjoined as a nuisance. Instead, appellants claim that they may be entitled to injunctive relief when the area is "predominately" residential. While the court in Bearden indicated considerable weight is given to the predominance of either commercial or residential property in the area, the court in no way broadened or enlarged the rules that the intrusion of a funeral home into an "exclu...
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