State ex rel. Cunningham v. Feezell

• Decision Date: 02 March 1966
• Citation: 22 McCanless 17,400 S.W.2d 716,218 Tenn. 17
• Parties: , 218 Tenn. 17 STATE of Tennessee ex rel. Charles CUNNINGHAM et al., Plaintiffs in Error, v. Donald C. FEEZELL, doing business as East Tennessee Cremation Company, Defendant in Error.
• Court: Tennessee Supreme Court

Page 716

400 S.W.2d 716

22 McCanless 17, 218 Tenn. 17

STATE of Tennessee ex rel. Charles CUNNINGHAM et al Plaintiffs in Error, v. Donald C. FEEZELL, doing business as East Tennessee Cremation Company, Defendant in Error.

Supreme Court of Tennessee.

March 2, 1966.

Hubert D. Patty, Maryville, for plaintiff in error.

Rom Meares, Sr., Maryville, for defendant in error.

WHITE, Justice.

The Honorable Glenn W. Woodlee, Chancellor, sitting by interchange for the Honorable W. Wayne Oliver, Judge of the Fourth Judicial Circuit, pursuant to appointment by the Chief Justice, heard this case which was brought in the name of the State of Tennessee, under T.C.A. § 23--301 et seq., on behalf of twenty-six citizens of Blount County, all similarly situtated, to enjoin the establishment of a crematory by Defendant Feezell in a 'rural or rural residential' area in said county.

The parties will be referred to in this Court as they were in the trial court; that is, Charles Cunningham and others will be referred to as 'petitioners', and Donald C. Feezell will be referred to as the 'defendant.'

Petitioners aver in their bill that the proposed establishment and operation of the crematory is a public or private nuisance and said establishment and operation should be enjoined immediately. They aver, inter alia:

The exact site where the defendant proposes to carry on his unsanctioned disposal of human bodies is located on a Narrow, secondary road known as Clover Hill Road. The building where he proposes to carry out his activities is a very Small building which has been Converted from a garage. The building has protruding from it a large and Gruesome smokestack.

The announced purpose of the defendant and the Possibility that he May carry out his plans and actually burn dead human bodies in the area has greatly horrified the community, caused a great uproar, turmoil, and much inconvenience, discomfort, annoyance, anguish, mental and physical sickness resulting in agonizing discomfort, depression to the petitioners and others similarly situated, and depriving them of the quiet, peaceful comfort, repose and enjoyment of their property and homes and wellbeing. Should the defendant be permitted to carry out his intentions it will greatly endanger the whole area and deprive the property owners of the quiet use and enjoyment of their property and endanger their lives and health either by actually rendering them sick mentally and/or physically and by lowering the vitality and resistance of others rendering them more susceptible to disease and illness. Such conduct by the defendant would violate the mores of the petitioners and others similarly situated and the accepted laws of decency in the community and will likewise obstruct the reasonable and comfortable use of their property causing the same to be depreciated in value.

Should the defendant be permitted to carry out his intended operation, it would of necessity require the use of ambulances which would have to be on the road both day and night inasmuch as it is the announced intentions of the defendant to bring dead bodies from foreign states from any and every place where he might solicit for his proposed operation. The operation of ambulances upon the narrow roads in the area complained of would be a hazard to other traffic on the roads, would very adversely affect the operation of school buses which operate twice a day throughout the area. The presence of the ambulances in the area would be very oppressive and disturbing to school children riding the buses and walking to and from school by engendering in their minds reminders of death and the unsanctioned disposal of dead human bodies to the extent that they would be greatly hindered in their enjoyment of life and the pursuit of their education. People going to and from church and attending public worship would likewise be disturbed and interfered with.

The building where the defendant proposes to carry on his operation as above described is very inadequate and is not supplied by a continuous source of fuel and could at the most handle only one body at a time, making it necessary that other bodies be stored in the area for various periods of time, in all possibility in open view of the petitioners and all other residents which would result in all of the adverse effects heretofore set out.

The apparatus which the defendant proposes to use is manufactured from without of the State and at a great distance from the area and when the same would become in disrepair, long periods of time would elapse before the same could be placed in order again which would without doubt result in noxious odors, stenches and smells and pollution of the area.

The operation would emit vapors through its normal operation and would affect the area adversely and interfere with the residents as changes in the atmosphere take place.

It is alleged that there would be great mental anguish and suffering not only from the visible burning vapors from the operation but also from the cruel and gruesome disposal of dead human bodies. (Emphasis supplied).

The petitioners further allege that no other such establishment is permitted in Tennessee, and that the defendant is not authorized by the State to do business here.

A demurrer was filed to the petition stating essentially that it sought an injunction for an anticipated injury which constitutes no basis for injunctive relief. Excellent trial briefs were prepared by both parties, and in a memorandum opinion and decree, the chancellor sustained the demurrer and dismissed the petition on the ground that the suit was premature. Motion for a new trial having been overruled, appeal was perfected to this Court.

The question presented for determination by the Court is essentially this: Does a cause of action exist to enjoin, as a nuisance, a proposed cremation establishment in a rural or rural residential area under averments of the residents of the area under it will cause mental anguish, depressed feelings, physical discomfort and lower property values? We do not think so.

We believe that for an injunction suit to be sustained prior to the alleged nuisance coming into being, it must be sufficiently shown in the original bill or petition that the proposed establishment is a nuisance Per se; that is within itself.

A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, Regardless of Location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger or inflict injury on person or property. 66 C.J.S. Nuisances § 3 (1950). (Emphasis supplied.)

Other definitions are: any act or omission or use of property or thing which is of itself hurtful to the health, tranquility, or morals, or which outrages the decency of the community; that which Cannot be so Conducted or Maintained as to be Lawfully carried on or Permitted to Exist; and, as related to private persons, an act or use of property of a continuing nature, offensive to and legally injurious to health and property, or both. 39 Am.Jur., Nuisances, § 11 (1942). (Emphasis supplied.)

It is perhaps misleading to define a nuisance per se as one which exists 'at all times and under any circumstances, regardless of location or surroundings.' Actually, a nuisance cannot exist without surrounding circumstances, because it is the surrounding circumstances that determine whether an injury is occasioned; and it is axiomatic that some injury must be occasioned or be at least imminent because of the alleged 'nuisance.'

There is, in at least one case in this State, an indication that the difference between a nuisance per se, and a nuisance per accidents is that in the former, injury in some form is certain to be inflicted, while in the latter, the injury is uncertain or contingent until it actually occurs. Pierce v. Gibson County, 107 Tenn. 224, 64 S.W. 33, 55 L.R.A. 477 (1901). This case held that where injury from a nuisance is not real and immediate and certain to occur, but only uncertain or contingent, the nuisance will not be enjoined anticipatory to its going into operation. C.J.S. indicates agreement with this case:

A Mere possibility or Fear of Future injury from a structure, instrumentality, or business which is Not a nuisance Per se is not ground for injunction, and equity will not interfere where the apprehended injury is doubtful or speculative; reasonable probability, or even reasonable certainty, of injury, or a showing that there will necessarily be a nuisance, is required. 66 C.J.S., Nuisances § 113 (1950). (Emphasis supplied.)

Another Tennessee case sets forth the rule more generally: Injunctions will not issue 'merely to relieve the fears or appprehensions of an applicant.' Nashville, C. & St. L.R. v. Railroad & Public Utilities Comm., 161 Tenn. 592, 32 S.W.2d 1043 (1930). In Central Drug Store v. Adams, 184 Tenn. 541, 201 S.W.2d 682 (1947), it was said that

* * * (w)here a business is not a nuisance in and of itself, a court of equity will not anticipate that it will be operated injuriously to others and award an injunction to abate it. 184 Tenn. at 549, 201 S.W.2d at 685.

We do not say that an anticipatory nuisance is not enjoinable under any circumstances. If the injury anticipated is imminent and certain to occur, there may, in fact, be a proper case for immediate abatement, provided, of course, the injury is recognized as otherwise actionable...