Rea v. Tacoma Mausoleum Ass'n

• Decision Date: 27 August 1918
• Docket Number: 14449.
• Citation: 174 P. 961,103 Wash. 429
• Court: Washington Supreme Court
• Parties: REA et ux. v. TACOMA MAUSOLEUM ASS'N.

174 P. 961

103 Wash. 429

REA et ux. v. TACOMA MAUSOLEUM ASS'N.

No. 14449.

Supreme Court of Washington, En Banc.

August 27, 1918

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Suit for injunction by David Rea and wife against the Tacoma Mausoleum Association. Decree for defendant, and plaintiffs appeal. Affirmed.

Gordon & Easterday and Carroll A. Gordon, all of Tacoma, for appellants.

Fletcher & Evans, of Tacoma, for respondent.

PARKER J.

The plaintiffs, Rea and wife, seek an injunction against the defendant Mausoleum Association, enjoining it from erecting and maintaining upon its land near their residence an addition to its present mausoleum. Trial upon the merits in the superior court for Pierce county resulted in judgment denying to the plaintiffs the relief prayed for from which they have appealed to this court.

Appellants have for several years owned and occupied their present home in Tacoma, consisting of three lots, each 25X120 feet in area, with a dwelling house thereon. The north line of their premises is the width of two lots, 50 feet, south of and parallel with the south boundary or Oakwood Cemetery, which had been established and maintained for many years. Several years ago respondent acquired land within the cemetery bordering on its southerly boundary, opposite appellants' premises. In the year 1911 it completed on this acquired land a mausoleum in which it had deposited from time to time dead bodies, maintaining the same as a place of permanent sepulture. The south wall of the mausoleum is just within the south boundary of the land acquired by respondent from the cemetery, and the southeast corner thereof is north and a little west of appellants' house, about 65 feet distant therefrom. The mausoleum is 70X120 feet upon the ground, is 30 feet high, and contains 864 crypts, nearly all of which have been sold, and a large number of which are already occupied. Since building its mausoleum respondent has acquired four lots approximately 50X260 feet in area, lying east and west along the south boundary of the land acquired by it from the cemetery, the easterly 120 feet of which lies immediately north of appellants' premises. On these lots it proposes to erect an addition to its mausoleum containing 1,050 crypts, of substantially the same character as the present one, covering an area 50X215 feet, the south wall of which will be within an inch or two of the entire north boundary of appellants' premises. It is the erection and maintenance of this addition which is sought to be enjoined, no complaint being made against the maintenance of respondent's present mausoleum. The outer walls of this addition, like the present structure, will be constructed of solid concrete 8 inches thick. They will have no openings, except possibly one door in the easterly end wall. The crypts will be constructed in sections inside of the outer walls of the same material, but reinforced with iron rods so that each section will form a solid mass of reinforced concrete crypts, without any vacant spaces therein other than the crypts themselves. They will be of such strength, as described by the contractor, that 'you could take a section of these crypts and tumble them down the side of a mountain, and they would not break apart.' The walls of the sections of the crypts will be 6 inches thick, and the southerly wall of the southerly section will be 4 inches from the southerly outer wall of the addition, so that between the southerly end of the crypts in that section and the southerly side of the outer wall there will be the two walls and the air space, occupying in all a width of about 20 inches. As each body is placed in a crypt the opening will be filled and sealed with concrete, so that each casket and body will be immediately surrounded by solid concrete walls 6 inches thick. The crypt will then be air tight, except that small pipes will lead from each crypt to a common opening through and above the roof of the building. The record all but conclusively shows that the sanitation of this addition, like that of the main structure, will be practically perfect; so that no fumes or drainage whatever will escape therefrom which will be in the least detrimental to the health of the appellants or others living in the neighborhood, or offensive to their physical senses. The south wall of the addition will be about 20 feet from appellants' house and about 12 or 14 feet from the extreme northerly edge of a porch thereto. The construction of this addition will not be in violation of any statute of the state, or ordinance of the city of Tacoma relating to cemeteries or other places of sepulture.

The facts shown by this record, we think, render it clear that our problem is reduced to this: Are appellants entitled to injunctive relief, restraining the construction and maintenance of this proposed addition to respondent's mausoleum merely because of the fact that it is to become a place of permanent sepulture so near to their residence, when it will not by the emission of fumes or drainage affect the physical senses or health of appellants or others residing equally near to it? That is, are the mere claimed unpleasant thoughts which its presence constantly suggests, though such effect of its presence may lessen the market value of appellants' premises, such as to entitle them to the relief prayed for? The authorities seem to hold with practical unanimity that cemeteries as places of permanent sepulture for the dead are not nuisances per se, and this it seems to us must also be the law with reference to permanent sepulture in a mausoleum, built above the ground, when such mausoleum incloses bodies with equal security as by ordinary interment in the earth. A mausoleum would seem to be no more suggestive of the presence of the dead than the ordinary tombstones so common in our cemeteries. In 5 R. C. L. 235, the learned editors state the general rule of nuisance as applied to cemeteries as follows:

'As public cemeteries, for the orderly and decent sepulture of the dead, are necessary requirements for all populous communities, private convenience must yield to the convenience of the public in fixing sites for them, and the courts should be particularly careful not to interfere to prevent such establishments, unless the mischief be undoubted and irreparable. The decided weight of authority may be said to be to the effect that a cemetery is not per se a nuisance.'

In Ellison v. Com. of Town of Washington, 58 N.C. (5 Jones' Eq.) 57, 75 Am. Dec. 430, it is said:

'If the grounds be arranged and drained, and the burial of the dead be conducted as elsewhere in such establishments, we incline decidedly to the opinion it will not be a nuisance, either public or private. The word 'nuisance' is, of course, used here in its legal sense, and is confined to such matters of annoyance as the law recognizes and gives a remedy for. The unpleasant reflections suggested by having before one's eyes constantly recurring memorials of death is not one of these nuisances. Mankind would, by no means, agree upon a point of that sort, but many would insist that suggestions thus occasioned would, in the end, be of salutary influence. The death-head is kept in the cell of the anchorite, perpetually before his eyes as a needful and salutary

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