Stoddard v. Snodgrass

• Decision Date: 08 December 1925
• Parties: STODDARD ET AL. v. SNODGRASS ET AL.
• Court: Oregon Supreme Court

241 P. 73

117 Or. 262

STODDARD ET AL. v. SNODGRASS ET AL.

Supreme Court of Oregon, En Banc.

December 8, 1925

Appeal from Circuit Court, Union County; H. H. Belt, Judge.

Suit by John I. Stoddard and others against Lot L. Snodgrass and others to restrain defendants from maintaining an undertaking establishment. Decree for defendants, and plaintiffs appeal. Affirmed.

Gustav Anderson, of Baker, and F. S. Ivanhoe, of La Grande (Smith &amp Anderson, of Baker, on the brief), for appellants.

Robt. S. Eakin and Geo. T. Cochran, both of La Grande (Cochran & Eberhard, of La Grande, on the brief), for respondents.

RAND J.

This suit was brought to restrain the defendants from maintaining an undertaking establishment on the corner of Pennsylvania avenue and Fourth street in the city of La Grande. For about 10 years before the commencement of the suit defendants and their predecessors had conducted said business on the opposite side of Fourth street, and almost immediately across the street from where the business is now being conducted. They bought the property on which the building in question stands and constructed the building at an expense of about $45,000. Before doing so they applied to the constituted authorities of the city of La Grande for permission to build the building and to use the same for carrying on their said business. Plaintiffs objected to the granting of such permission, but it was granted. Shortly after defendants had commenced to construct said building, plaintiffs commenced this suit and prayed for a temporary restraining order, but no undertaking was given and no restraining order was issued. At the time of the trial defendants had occupied and conducted their business in said building for about two months. There is no zoning ordinance or enactment prohibiting the maintenance of an undertaking establishment at said place. The defendants had decree and plaintiffs appealed.

The plaintiffs are 11 in number. They each own and occupy a dwelling house in that immediate vicinity. The property of one of the plaintiffs adjoins that of the defendants; the distance between his dwelling house and the building in question being about 20 or 25 feet. There are two churches in the immediate neighborhood of plaintiffs' property but, except for said churches and the undertaking establishment of plaintiffs, that part of the city has been and still is devoted exclusively to residence purposes. There is no dispute as to any of these facts.

Plaintiffs base their right to injunctive relief upon the allegations of the complaint to the effect that the carrying on of defendants' business will require the use of chemicals and that the use thereof will taint and pollute the air with noxious, disagreeable, and offensive odors; that the bodies of persons who have died of contagious diseases will be brought to and prepared for burial in said building, and will result in the spread of contagious diseases; that the use of said property for said purpose has depreciated the value of plaintiffs' property; that the frequent bringing and removal of dead human bodies to and from said building, and their being kept in said building for the purpose of preparing them for burial, the going and coming of ambulances and hearses, the holding of funeral services and the congregation of people at said services, will be a constant reminder of mortality, which will have a depressing and deleterious effect upon the physical and mental condition of plaintiffs and of the members of their families, which will render them more susceptible to disease, and will deprive plaintiffs of the right to enjoy the comfort and repose of their homes.

There was no evidence tending to show that any disease has ever been communicated to any one from the conduct of said business by plaintiffs or their predecessors, nor was there any evidence tending to show that any noxious fumes or gases have ever been detected by any one outside of said building. There was some evidence tending to show that by reason of the business being conducted at said place the value of property in that immediate neighborhood has depreciated to some extent; but this evidence was contradicted, and no satisfactory explanation was given why the change of the location of the business from an old building to a new and expensive structure, almost immediately across the street, should cause a depreciation of the value of property in that immediate neighborhood. The case therefore, presents the sole question of whether, in the absence of some enactment under the police power of the state restricting the use of property, plaintiffs are entitled to injunctive relief upon the sole ground that the presence in the immediate neighborhood of their homes and in a residential district of the city of La Grande of an undertaking establishment properly and sanitarily conducted, with its attendant receipt, removal, and preparation for burial of dead human bodies, the frequent passing and repassing in plain view of ambulances and hearses known to contain such bodies, the conducting of funeral services and the collection of crowds attending thereat, would have such a deleterious and depressing effect upon the minds of normal persons living in the immediate vicinity thereof that it would render them more susceptible to contracting disease, or would excite sufficient dread or terror to deprive them of the comfort and enjoyment of their homes. This question is one of first impression in this court.

Plaintiffs rely upon Densmore v. Evergreen Camp No. 147, 61 Wash. 230, 112 P. 255, 31 L. R. A. (N. S.) 608, Ann. Cas. 1912B, 1206; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L. R. A. 1918A, 825; Cunningham v. Miller, 178 Wis. 22, 189 N.W. 531, 23 A. L. R. 739; Leland v. Turner, 117 Kan. 294, 230 P. 1061.

In the first case cited it was, in effect, held that the maintenance of an undertaking establishment in a residence part of a city, within a few feet of neighboring residences, may be enjoined by their owners as a nuisance, in view of the probable interference with the comfortable enjoyment of their property by the depressing effect of reminders of mortality and the escape of noxious odors and gases from the chemicals used in the business. This broad and unqualified statement of the law seems to have been somewhat restricted by that court in Rea v. Tacoma Mausoleum Ass'n, 103 Wash. 429, 435, 174 P. 961, 962, 1 A. L. R. 541, 545, where the court said:

"No decision has been called to our attention wherein any court has awarded injunctive relief, rested upon the sole ground of the mere presence of a cemetery or other place of sepulture, unattended by injurious or offensive drainage or fumes, sensible to the complaining party, and our own search

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