Powell v. Taylor
| Decision Date | 11 January 1954 |
| Docket Number | No. 5-266,5-266 |
| Citation | 263 S.W.2d 906,222 Ark. 896 |
| Parties | POWELL et al. v. TAYLOR et al. |
| Court | Arkansas Supreme Court |
Lookadoo & Lookadoo, Arkadelphia, for appellant.
Bobby Steel, Nashville, Shaver, Tackett & Jones, Texarkana, for appellee.
This is a suit brought by six residents of Gurdon to enjoin the appellees from establishing a funeral home in a residential district within the city. The defendants intend to remodel a dwelling known as the Taylor place and to use it as a combined residence and undertaking parlor. The plaintiffs, who own homes nearby, objected to the proposal and offered to reimburse the defendants for the preliminary expenses already incurred. This effort to dissuade the defendants having failed, the present suit was filed. The chancellor denied relief upon the ground that the neighborhood is not exclusively residential.
On this particular subject the law has undergone a marked change in the past fifty years. Until about the end of the nineteenth century the only limitation upon one's right to use his property as he pleased was the prohibition against inflicting upon his neighbors injury affecting the physical senses. Hence the older cases went no farther than to exclude as nuisances, in residential districts, such offensive businesses as slaughterhouses, livery stables, blasting operations, and the like.
Today this narrow view prevails, if at all, in a few jurisdictions only. It is now generally recognized that the inhabitants of a residential neighborhood may, by taking prompt action before a funeral home has been established therein, prevent its intrusion. In 1952 the Supreme Court of Louisiana reviewed the more recent decisions in twenty-two States and found that nineteen prohibit the entry of a mortuary into a residential area, while only three courts adhered to the older view. Frederick v. Brown Funeral Homes, Inc., 222 La. 57, 62 So.2d 100. In a casenote the matter is summed up in these words: 'The modern tendency to expand equity's protection of aesthetics and mental health has led the majority of jurisdictions to bar funeral homes or cemeteries from the residential sanctuaries of ordinarily sensitive people.' 4 Ark.L.Rev. 483. These decisions rest not upon a finding that an undertaking parlor is physically offensive put rather upon the premise that its continuous suggestion of death and dead bodies tends to destroy the comfort and repose sought in home ownership.
We have already announced our preference for the view that permits the citizens of a residential district to make timely objection to its invasion by a funeral home. In Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18, 19, we set aside the chancellor's injunction only because the neighborhood was changing to a business district, having already acquired drugstores, filling stations, grocery stores, etc. In that opinion we said, with reference to the proposed mortuary: 'If the district of the location was an exclusively residential one, its intrusion therein would ordinarily constitute a nuisance, and could be prevented by injunction.'
It is our conclusion in the case at bar that the neighborhood in question is so essentially residential in character as to entitle the appellants to the relief asked. The Taylor place is situated at the corner of Eighth and East Main Streets, and the testimony is largely directed to the area extending for two blocks in each direction, or a total of sixteen city blocks. In a relatively small city an area of this size may well be treated as a district in itself, else there might be no residential districts in the whole community. Gurdon is a city of the second class, having had a population of 2,390 in the year 1950. It is not shown to have adopted a zoning ordinance.
This square of sixteen blocks is bounded on the west by a public highway which is bordered by commercial establishments, their exact nature not being shown in detail. Otherwise the nighborhood is exclusively residential in appearance and almost so in its actual use. A seamstress living two doors east of the Taylor place earns some income by sewing at home. The couple in the house just south of the Taylor place rent rooms to elderly people and take care of them when they are ill. J. T. McAllister lives diagonally across the intersection from the Taylor place. He is in the wholesale lumber business and uses one room as an office, keeping books there and transacting business by telephone and with persons who call. A photograph of this home shows that there is no sign or anything else to indicate that business is carried on there. Farther up the street an eighty-year-old dentist has a small office in his yard and occasionally treats patients. The testimony discloses no other commercial activity within the area.
On the other hand, the residential quality of the neighborhood is convincingly shown. A real estate dealer describes it as the best residential section in Gurdon. Estimates as to the value of various homes range from $15,000 to $35,000. Many inhabitants of the area confirm its residential character and earnestly protest the entry of the mortuary. One, whose wife suffered a mental illness some years ago, says that he will be forced to move away if the funeral home is established. Another testifies that he will not build a home on his vacant lots across the street from the Taylor place if it is converted to a funeral parlor. A third testifies that she lost interest in buying the house next to the Taylor place when she learned of the defendants' plans. It is true that other witnesses state that they have no objection to the proposal, and the chancellor found that property values will not be adversely affected. But we regard the residential character of the vicinity as the controlling issue, and the evidence upon that question preponderates in favor of the appellants.
Reversed.
As I read the opinion of the majority, it is now the law in Arkansas that the operation of a modest undertaking parlor in a mixed residential and business area of a city of the second class constitutes a nuisance per se and may be abated as such by injunction. This...
To continue reading
Request your trial
-
Miller v. Jasinski, CA
...an opposite conclusion. The opinion in Mitchell, and those in Blair v. Yancy, 229 Ark. 745, 318 S.W.2d 589 (1958) and Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906 (1954) which preceded it, make it clear that our courts now treat mortuaries which intrude into exclusively residential areas ......
-
Potter v. Bryan Funeral Home, 91-86
...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 residen......
-
Overby v. Piet, E-303
...1 Jones v. Trawick, 75 So.2d 785 (Fla.1954).2 Leffen v. Hurlbut-Glove Mortuary, 363 Mo. 1137, 257 S.W.2d 609 (1953); Powell v. Taylor, 222 Ark. 896, 263 S.W.2d 906 (1954); Mutual Service Funeral Home v. Fehler, 257 Ala. 354, 58 So.2d 770 (1952).3 Plantation Estates, Inc. v. Florida Memorial......
-
Mitchell v. Bearden, 73--177
...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, ......
-
The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
...of an abnormally sensitive plaintiff? Or is the fear of the dead, though irrational, widespread enough to be “normal”? POWELL v. TAYLOR 222 Ark. 896, 263 S.W.2d 906 (1954) GEORGE ROSE SMITH, Justice. This is a suit brought by six residents of Gurdon to enjoin the appellees from establishing......