Williams v. Montgomery

• Decision Date: 06 February 1939
• Docket Number: 33482
• Citation: 186 So. 302,184 Miss. 547
• Court: Mississippi Supreme Court
• Parties: WILLIAMS et al. v. MONTGOMERY et al

186 So. 302

184 Miss. 547

WILLIAMS et al. v. MONTGOMERY et al

No. 33482

Supreme Court of Mississippi, Division A

February 6, 1939

APPEAL from the chancery court of Leflore county HON. R. E. JACKSON Chancellor.

Suit by Mrs. Lillie H. Montgomery and others against Mrs. Alice Williams and another to enjoin the defendants from operating a funeral home and undertaker's establishment and a morgue on certain property owned by defendants in the city of Greenwood, Miss. From a decree for complainants, the defendants appeal. Affirmed.

Affirmed.

Knox Lamb, J. W. Bradford, F. M. Witty, and O. L. Kimbrough, all of Greenwood, for appellants.

We do not believe the weight of authority is to the effect that a funeral home in a residential section is a nuisance and can be abated. On the contrary, we contend that the weight of authority is to the effect that a funeral home located in a residential section is not a nuisance within itself, but only becomes a nuisance when it is operated in an improper manner and under particular circumstances, which circumstances are not present in the instant case.

While the Supreme Court of Mississippi has never passed on this exact proposition, it has considered questions so similar that it is, in effect, the settled law of Mississippi that the funeral home in this case cannot be abolished. Our courts have held that an owner cannot be restricted in the use and enjoyment of his property, except in the most extreme cases and that the appellees, complainants below, must prove their right to the relief prayed for beyond every reasonable doubt. And that, even then, they are entitled only to so much relief as is necessary.

Green v. Lake, 54 Miss. 540; McCutchen v. Blanton, 59 Miss. 116; Quintini v. Bay St. Louis, 1 So. 625, 64 Miss. 483.

We assert, without fear of successful contradiction, that even the Legislature of a State is without power or authority to wantonly deprive an owner of property of lawfully enjoying and using same. If a municipality and a sovereign State cannot ruthlessly deprive a citizen of the lawful use of his property, by what authority do these few complainants claim that right?

National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388.

There are other states which have passed on the precise point now under consideration, and which have held that the funeral home as operated in the case at bar does not constitute a nuisance.

Westcott v. Middleton, 43 N.J. Eq. 478, 11 A. 490; Koebler v. Pennewell, 75 Ohio St. 278, 79 N.E. 471; Dean v. Powell, 55 Cal.App. 545, 203 P. 1015; Stoddard v. Snodgrass, 214 P. 73, 43 A.L.R. 1160; L. D. Pearson & Son v. Bonnie, 209 Ky. 307, 272 S.W. 375, 43 A.L.R. 1166; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Dutt v. Fales, 230 N.W. 948; Meldahl v. Halburg, 55 N.D. 523, 214 N.W. 802; Mast v. Oakley, Metcalfe Funeral Home, 101 S.W.2d 819; Densmore v. Evergreen Camp, 61 Wash. 230, 31 L.R.A. (N.S) 608, 112 P. 255, Ann. Cas. 1912B 1206; Rea v. Tacoma Mausoleum Assn., 104 Wash. 429, 174 P. 961, 1 A.L.R. 541.

The states of New Jersey, Oregon, Kentucky, California, Texas, Ohio, Michigan, Arkansas, Washington, North Dakota and Tennessee have refused to abate the operation of a funeral home under facts and circumstances much stronger from the complainant's point of view than in the case at bar. We will now cite all the cases, involving this question, where funeral homes have been abated and show that even these cases are by no means contrary to our theory, but, on the other hand, support our contention that where funeral homes are operated under the same conditions as the one at bar they do not constitute a nuisance.

Higgins v. Bloch, 104 So. 429, 112 So. 739; Harris v. Sutton, 168 Ga. 565, 148 S.E. 403; Albright v. Crim, 185 N.E. 304; Bevington v. Otte, 273 N.W. 98; Hatcher v. Hitchock, 281 P. 869; Leland v. Turner, 117 Kan. 294, 230 P. 1061; Weinman v. Miles, 4 P.2d 437; Saier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A 825; Dillon v. Moran, 211 N.W. 67; Street v. Marsh, 216 Mo. 698, 291 N.W. 494; Beisel v. Crowsby, 104 Neb. 643, 178 N.W. 272; Arthur v. Virkler, 144 Misc. 483, 268 N.W.Supp. 886; Jordan v. Nesmith, 132 Okla. 226, 269 P. 1096; Blackburn v. Bishop, 299 S.W. 264; Bragg v. Ives, 140 S.E. 656; Cunningham v. Miller, 178 Wisc. 22, 23 A.L.R. 739.

Alfred Stoner and H. Talbot Odom, both of Greenwood, for appellees.

We do not contend that a funeral home is a nuisance per se. The authorities are uniform on this point and hold that a funeral home is not a nuisance if established and operated in the right locality and if properly kept and managed. But our position is that a funeral home or undertaking establishment may be enjoined if it is located, and attempts to operate, in an exclusively residential district of a city under the circumstances disclosed by the record in this case.

As we conceive the record, the precise legal question involved in the case at bar is whether or not a funeral home or undertaking business can invade a strictly residential section in a city, establish itself, and carry on its operations in the face of opposition and protests of nearby and adjacent home owners, and thereby depress the value of their property and destroy the tranquility, peace of mind, and happiness of their homes; or will a court of equity grant relief by enjoining such establishment as a private nuisance?

Our own court has never passed on the proposition, and being a matter of first impression, we must look to the decisions of other jurisdictions where we find the exact point has been thoroughly considered and is well settled, but there is not complete uniformity in the earlier decisions. However, the greater weight of authority and all cases coming to our attention decided since 1925 are to the effect that the establishment and operation of an undertaking business in a purely residential section under the circumstances shown in the case at bar constitute a private nuisance and will be enjoined.

Kirk v. Mabis, 246 N.W. 759, 87 A.L.R. 1055; Higgins v. Bloch, 104 So. 429, 112 So. 739; Laughlin, Wood & Co. v. Cooney, 126. So. 864; Fentress v. Sicard, 181 Ark. 173, 25 S.W.2d 18; Harris v. Sutton, 168 Ga. 565, 148 S.E. 403; Albright v. Crim, 185 N.E. 304; Bevington v. Otte, 273 N.W. 98; Street v. Marshall, 316 Mo. 698, 291 S.W. 494; Leland v. Turner, 117 Kan. 294, 230 P. 1061; Hatcher v. Hitchcock, 129 Kans. 88, 281 P. 869; Weiman v. Miles, 4 P.2d 437; Osborn v. Shreveport, 143 La. 932, 79 So. 542, 3 A.L.R. 955; Lewis v. Baltimore, 164 A. 220; Seier v. Joy, 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A 825; Dillon v. Moran, 237 Mich. 130, 211 N.W. 67; Dutt v. Fales, 230 N.W. 948; Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202; Street v. Marshall, 316 Mo. 698, 291 S.W. 494; Biesel v. Crosby, 104 Neb. 643, 178 N.W. 272; Arthur v. Virkler, 144 Misc. 483, 258 N.W.Supp. 886; Mendahl v. Holberg, 214 N.W. 802; Jordan v. Nesmith, 132 Okla. 226. 269 P. 1096; Blackburn v. Bishop, 299 S.W. 264; King v. Guerra, 1 S.W.2d 373; Mast v. Oakley Metcalf Funeral Home, 101 S.W.2d 819; Bragg v. Ives, 149 Va. 483, 140 S.W. 656; Densmore v. Evergreen Camp, 61 Wash. 230, 31 L.R.A. (N.S) 608, 112 P. 255, Ann. Cas. 1912B, 1206; Heart v. Heath, 296 P. 816; Cunningham v. Miller, 178 Wis. 22, 189 N.W. 53, 23 A.L.R. 739,

Where either of two conclusions from reasonable inferences is justified by evidence, conclusion reached by chancellor must be accepted as correct, and Supreme Court will interfere only when it is clearly manifest that Chancellor should have accepted the opposite view.

Powell v. Tomlinson, 129 Miss. 658, 92 So. 583; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Buckaby v. Jenkins, 153 Miss. 359, 121 So. 130; Clark v. Dorsett, 157 Miss. 365, 128 So. 79; Cole v. Standard Life Ins. Co., 173 Miss. 507, 154 So. 533; Biles v. Walker. 121 Miss. 98, 83 So. 411; Nash v. Stanley, 168 Miss. 691, 152 So. 294; Langston v. Farmer, 176 Miss. 870, 170 So. 233; Glover v. Falls, 120 Miss. 201. 82 So. 4; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91.

Argued orally by Knox Lamb, for appellant, and by H. Talbot Odom and Alfred Stoner, for appellee.

OPINION

McGowen, J.

The Williams Funeral Home, conducted by Mrs. Alice Williams and M. T. Williams, and the Southern Undertaking Association appealed to this Court from a decree of the chancery court perpetually enjoining them from operating a funeral home and undertaker's establishment and a morgue on certain property owned by the appellants, known as the Tarver residence, on the River Road in the City of Greenwood, Mississippi. The bill was filed by Susan Malone Scales, Betty Malone, H. F. McShane, Mrs. Lillie ti. Montgomery, T. S. Marye, W. P. Weaver, and Joseph W. George seeking a perpetual injunction.

The bill very fully described the operation of the funeral home and undertaking establishment, and the answer denied every material allegation in the bill, save that it was admitted that the funeral home was being operated. On the hearing of the case many witnesses were examined and we cannot undertake a detailed analysis thereof.

The chancellor found, and we think it was practically undisputed, that River Road was an exclusively residential district in the City of Greenwood, fronting on Yazoo River, with a paved street between, described in the record as a beautiful residential district. No zoning ordinances are here involved.

On July 26, Mrs. Williams filed a deed conveying to her the Tarver property, which was a two-story house that had been always theretofore occupied as a residence. Mrs. Scales and Miss Betty Malone lived immediately west of the funeral home about forty-five feet therefrom. Mrs. Montgomery and her husband lived to the east, with Dewey Street between, about ninety-five feet from the...