White v. Luquire Funeral Home

• Citation: 129 So. 84,221 Ala. 440
• Decision Date: 27 March 1930
• Docket Number: 6 Div. 435.
• Parties: WHITE ET AL. v. LUQUIRE FUNERAL HOME ET AL.
• Court: Supreme Court of Alabama

129 So. 84

221 Ala. 440

WHITE ET AL. v. LUQUIRE FUNERAL HOME ET AL.

6 Div. 435.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied June 26, 1930.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill for injunction by Murray C. White and others against the Luquire Funeral Home and others. From a decree denying relief, complainants appeal.

Affirmed.

Harsh &amp Harsh and Frank S. White, Jr., all of Birmingham, for appellants.

Amzi G Barber, of Birmingham, for appellees.

BOULDIN J.

Bill to enjoin the erection and operation of a funeral home in the immediate neighborhood of the residences of complainants.

In the main, the controlling facts are not in dispute. The court below having heard the testimony orally and in great detail we follow him on such issues of fact as are in dispute, unless the weight of evidence is so opposed to his decision as to convince us that his finding was clearly wrong.

With this rule in mind, we seek to give a brief statement of pertinent facts.

The proposed funeral home is of modern purpose and design. Bodies of the dead are received from homes or elsewhere, prepared for burial, then disposed of as directed; sometimes returned to the homes from which they came, sometimes shipped to other points, and frequently held for funeral exercises in the chapel, whence the funeral procession proceeds to the cemetery.

Equipment includes ambulances, hearses, and cars for use in funerals.

The site fronts west on Twenty-Fourth street between Eleventh and Twelfth avenues in the city of Birmingham. The block, from Twelfth avenue on the north to Eleventh avenue on the south is some 460 feet in length, and some 400 feet in depth between Twenty-Fourth and Twenty-Fifth streets. This block is bisected by an alley 20 feet wide running north and south and another running east and west, cutting it into four rectangles of about equal area.

The funeral home is located just north of the east and west alley. Just south of this alley, fronting also on Twenty-Fourth street, is the residence owned and occupied by complainant Murray C. White and family. The distance of this residence from the funeral home is about 25 feet.

Ambulances, hearses, etc., pass in and out through the alley. Next south of Murray C. White is the residence formerly owned and occupied by Captain Frank S. White, now deceased, and at present owned and occupied by complainants Frank S. White, Jr., W. T. White, and Marguerite White. This property fronts also on Twenty-Fourth street 150 feet, extending to Eleventh avenue.

Other complainants own and occupy residences located on the west side of Twenty-Fourth street fronting toward the funeral home. One complainant owns a residence to the rear of and across the north and south alley from the funeral home. Complainant Dr. S. H. Wallace owns the Fraternal Hospital, occupying the southeast quarter of the same block, fronting on Twenty-Fifth street and Eleventh avenue, the rear of the hospital premises being across the alley from the rear of the White properties, and cornering diagonally across the alley from the funeral home.

Under our statute, if any one of complainants is entitled to have the funeral home enjoined as a nuisance, such relief should have been granted.

The residence of Murray C. White is the one in closest contact with and most immediately affected by the discomforts, annoyances, and the dangers, if any, growing out of such contact.

We need not, therefore, deal with the specific claim of each of complainants to relief.

This immediate district was first built up as a residence section, the Frank S. White residence dating back to 1887. In recent years it has been in a state of transition, becoming more and more devoted to commercial and other business purposes.

The north end of this block fronting on Twenty-Fourth street, the property of complainant Macke, is built up with retail stores, with offices and apartments on the second floors.

Apartment houses for residence purposes only located in strictly residence districts are due all the protection of other residence properties; but when directly over and in the same building with commercial enterprises, the incidents of a commercial district must needs affect their status.

Business enterprises are now located at both ends of the block fronting this funeral home, the corner lots on the west side of Twenty-Fourth street. Along Twelfth avenue east from Twenty-Fourth street business properties have accumulated, among other things, Brown's Funeral Home, on Twelfth avenue between Twenty-Fifth and Twenty-Sixth streets.

Without further detail, it suffices to say new construction is for business purposes, residences being removed to make way for same. A residence was removed to make a site for the Luquire Funeral Home here involved. Still many residences are here; a majority of the lots fronting on both sides of Twenty-Fourth street between Eleventh and Twelfth avenues are still occupied by residences, several of them owned by complainants to this bill. It may be truly said this funeral home is enlarging the business area in that block, pushing back the residence area, located in close proximity to residence property on three sides, separated by an alley on the south and east, and by Twenty-Fourth street on the west.

By the zoning ordinance of the city of Birmingham adopted in 1926, the city is divided into residence districts (four classes, A-1, A-2, B-1, and B-2), commercial districts, and industrial districts (two classes, light and heavy).

The site of the proposed funeral home is zoned in and as part of a commercial district. All the block where it is located is in the same district, except the southeast portion occupied by the Fraternal Hospital, which is zoned in a residence district. The block fronting on the west side of Twenty-Fourth street from this site is in the commercial district.

By the zoning ordinance buildings may be erected or used in a commercial district for any purpose except specified uses therein prohibited.

Exception No. 15 reads: "Undertaking, embalming or cremating parlor or plant, if so located that any part of such structure is within three hundred (300) feet of any lot which is in a Residence District as established by this ordinance and which abuts upon any part of any street which adjoins the lot upon which such structure is situated."

Like the city authorities, we construe this ordinance purports to authorize the erection of a funeral home in a commercial district, provided it is not within 300 feet of a residence lot located in a residence district as established by the ordinance, and which abuts on the same street with the funeral home. The intent seems to be to protect established residence districts from the location of such business near the boundary thereof and abutting on the same street within such distance as in the judgment of the zoning board will tend to defeat the purposes of a residence district. Authorization so construed, the location selected for this funeral home is one permitted by the zoning ordinance. A permit was accordingly issued to respondent W. H. Luquire, who was proceeding to erect garages for use in connection with the funeral home when the bill was filed.

We are confronted with this inquiry: Notwithstanding the zoning ordinance, the layout of districts pursuant thereto, and the issuance of a permit, is the funeral home a nuisance which should be enjoined in equity at the suit of these complainants or some of them?

It is a question of real difficulty, one to which we have given much consideration.

"A nuisance at law or a nuisance per se is defined to be 'an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.' 29 Cyc. 1153." Wheeler v. River Falls Power Co., 215 Ala. 655, 659, 111 So. 907; First Ave. Coal & Lumber Co. v. Johnson, 171 Ala. 470, 474, 54 So. 598, 32 L. R. A. (N. S.) 522. This appears to be the accepted definition. 46 C.J. 648, § 5.

This definition is not always strictly adhered to even in our own decisions.

Thus in Higgins et al. v. Bloch et al., 213 Ala. 209, 104 So. 429, 431, it is said: "A business, lawful in its nature, and not a nuisance per se in one locality, may become or be a nuisance per se when erected and maintained in certain other localities. The particular location of the business and its management and the time of its erection may determine whether it is or not a nuisance per se. English v. P. E. L. & M. Co., 95 Ala. 267, 10 So. 134; Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453; Cemetery Co. v. McEvers, 168 Ala. 535, 53 So. 272."

Where "location" is a determining factor, the difference is rather one of terminology than of substance.

No lawful business can be deemed a nuisance per se under the definition first above quoted.

As frequently declared by this court, a funeral home is not a nuisance per se in that sense. It is a lawful business, one quite essential to meet modern needs in many ways.

But it must be regarded as settled in this jurisdiction that a funeral home located in a distinctly residence district may be and often becomes subject to be abated as a nuisance to those whose residences are in immediate proximity thereto.

In many early cases, and in the bill filed here, stress was laid on offensive odors, distracting sounds, danger from exposure to communicable diseases, etc.

The evidence in this record warrants a finding, in keeping with that of other courts in recent cases, to the effect that with modern equipment and management under up-to-date sanitary regulations, no offensive odors may reasonably be expected to reach residents upon nearby property. Annoyance therefrom and...