111 P. 392 | Okla. | 1910
The defendant in error, as plaintiff, instituted an action in the district court of Custer county, state of Oklahoma, to enjoin the plaintiffs in error as defendants from entering upon a certain thirty acres of land and establishing a cemetery or burial grounds thereon. A demurrer being interposed, the same was overruled, and defendants answered. After trial, before the court without the intervention of a jury, judgment was rendered in favor of the plaintiff, perpetually enjoining the defendants as prayed. By proceeding in error, the action of said court is properly here for review.
Section 966, Comp. Laws Okla. 1909 (section 625, Wilson's Rev. Ann. St. Okla. 1903), provides:
"It shall be unlawful for any person, company, corporation or association to establish and use for burial purposes, any graveyard or cemetery located less than three-fourths of one mile from any tract of land platted as an addition to any city or town within *162 the State of Oklahoma, wherein lots have been sold in good faith, prior to the time that such cemetery was located and set apart to the burial of the dead. It shall also be unlawful for any person, company, corporation or association to maintain and use for burial purposes, any graveyard or cemetery located less than three-fourths of one mile from any tract of land platted into blocks to be sold for residence purposes within the Territory of Oklahoma wherein lots may have been sold in good faith prior to the time that such cemetery was located and set apart to the burial of the dead."
Plaintiff neither alleges nor proves that he owns lots in any tract platted as an addition to said city, etc. Such was essential. Weaver v. Kuchler et al.,
In Weaver v. Kuchler et al, supra, it was held:
"Where a slaughter house has been enjoined as a nuisance, and on the hearing of a motion to dissolve the evidence shows that it is not a nuisance per se, and that it can be carried on so as not to constitute a nuisance, the injunction will be modified so as to permit its usage in an unobjectionable manner."
In Kingsbury v. Flowers,
"The allegations of the present bill are that the graves now on the grounds are west of south of complainant's dwelling. The one nearest is 182 feet from the well on his lot. The whole burial ground is on more elevated ground that his lot, and there is a fall of from four to five feet from the surface of the graves to the surface of the well. The natural course of the surface water from the burial ground is through the lot of complainant, and near the well. He has been compelled to cut a ditch to turn the surface water and surface drainage from his yard and well. There is the further general allegation that any further interments on these grounds will endanger the health of complainant and his family by corrupting the water of the well and polluting the atmosphere. The first burial on the ground was in 1863, and the last in 1874; and it is not averred that there was from either any pernicious consequence to the complainant or to his family, nor that any harm thus far has been suffered from use of the grounds as a burial place. These averments are too general and *163
indefinite to authorize the interference of a court of equity. Facts and circumstances should have been stated distinctly, from which the court could see plainly that, if future interments on these grounds are not prevented, there would be a diminution of the complainant's enjoyment of his dwelling; and at least probable injury to the health of his family. It is not enough to allege simply that such consequences will result. There must be such a clear, precise statement of facts that there can be no reasonable doubt, if the acts threatened are completed, grievous injury will result. Adams v. Michael,
In Jung et al. v. Neraz,
In Dunn v. City of Austin,
"That a cemetery is not a nuisance per se would seem to be a self-evident proposition, and is well settled by the authority of many adjudicated cases. There is no doubt, however, that from its locality or manner of use it may become a nuisance. The inquiry in this case is, does the petition allege the existence of such *165 facts as show with reasonable certainty that a nuisance will be brought into existence, and that the petitioners and those whom they assume to represent will suffer injury thereby unless the relief prayed for is granted?"
The court further said:
"In view of the rules applicable to the pleadings in cases of this character, do the averments of the petition show such facts as entitle appellants to the relief sought? There is no averment whatever as to the contemplated mode of sepulture, and the entire basis of the claim that injury will result from the addition of the cemetery in use is found in the fact that the addition is somewhere in the vicinity in which appellants and others own property and reside. It is not averred that any part of the lands so owned are even contiguous to that intended to be added, and, so far as can be ascertained from the petition, the one may be so far removed from the other as to render injury impossible. In the fourth paragraph of the petition, it is alleged that the lands owned and inhabited by petitioners, and those for whom they act, consisting of outlots whose sizes are not stated, lie in the neighborhood of outlot 40, on which is the old cemetery; that the lands so owned almost surround that cemetery, some only of which are adjacent thereto, while others are separated therefrom by intervening property. * * * It may be that proximity to a cemetery will render property less valuable than it would otherwise be, but this furnishes no reason why the owner of ground so used should be restrained from continuing the use so long as that does not create a nuisance. The case of Jung v. Neraz,
In Braasch et al. v. Cemetery Ass'n of the EvangelicalLutheran Christ Soc. et al.,
"(1) A court of equity will enjoin the use of a tract of land for cemetery purposes so situated that the burial of the dead there will injure life or health either by corrupting the surrounding atmosphere, or the water of wells or springs. (2) A burial ground near dwellings is not necessarily a nuisance, and the court will only interfere and enjoin its use on clear and convincing proof of probable injury."
The facts in support of the enjoining of the establishment and *166 maintenance of the cemetery were stronger than in the case at bar. In that case the court said:
"It is the settled law of this state that a use made by one of his property which works an irreparable injury to the property of his neighbor, or whereby the unwritten but accepted law of decency is violated, or which deprives his neighbor of the reasonable and comfortable use of his property, or will probably injure the health or life of his neighbor, is a private nuisance and may be enjoined. * * * It is equally well settled that in such a case, to authorize an injunction, it must be established by satisfactory evidence that the threatened or apprehended injury will probably result. It is also the rule that a burial ground near dwellings is not necessarily a nuisance, and its use can only be enjoined on clear proof of probable injury."
After considering in detail the evidence in the case, the court, in denying the injunction, said:
"In order to authorize a court of equity to interfere, it must be made to clearly appear by competent evidence that it is reasonably certain that the anticipated injuries will probably occur. The law protects against real wrong and injury combined, but not against either or both when merely conjectural or fanciful."
The plaintiff here alleges that:
"The defendant association * * * have undertaken to purchase and accept from the defendant Ruble a conveyance for cemetery purposes of a tract of 30 acres of land, * * * which said 30 acres lies across the section line and adjacent to the plaintiff's home, being separated therefrom only by the public roadway, a distance of about 66 feet; that all of the said 30 acres drains towards plaintiff's said dwelling house and his cistern, situate near, so as to allow all the drainage from the cemetery grounds, if so established, to flow in the direction of the plaintiff's house and cistern; that the defendant's unless restrained, will proceed to complete the laying out and establishing a cemetery grounds on said 30 acres of land, which they have already commenced to do, bordering within about 66 feet of and draining towards plaintiff's house and cistern and premises where he resides and has his family, all of which will result in great and irreparable injury to the plaintiff, and that the plaintiff has not adequate remedy at law; that plaintiff's home is situated on the only desirable site for residence on said land; that no necessity exists or *167 ever has existed for the location of a cemetery in front of plaintiff's home as hereinbefore set out; that said acts of defendants being permitted to be performed would be wholly illegal, and would work great and irreparable injury to plaintiff, and that he has not adequate remedy at law; that said 30 acres of land, upon which defendants are attempting and beginning to establish a cemetery as hereinbefore set out, is located within less than three-fourths of one mile from a tract of land platted into blocks or tracts and to be sold for residence purposes within said county, and wherein lots or tracts have been sold in good faith prior to the time that said defendants attempted and commenced to establish said cemetery as set out therein; that the location of same within said distance of plaintiff's dwelling house will, if permitted to be done, endanger the lives of plaintiff and his family, for which reason said act would be a special injury to this plaintiff; that, in addition to resulting in actual physical discomfort to plaintiff and his family, said location would greatly impair the value of plaintiff's property; that said acts of defendants, if permitted to be done, would cause plaintiff great mental and bodily pain, and injury different in kind and in addition to that suffered by the general public."
Although, after the trial court overruled the demurrer, the defendants' exceptions being saved thereto, not electing to stand on their demurrer so as to at once have the action of the trial court reviewed, but answering, that does not preclude the demurrant from having such action reviewed when the case has been finally tried, if it is tried on the petition against which the demurrer was leveled. Un. Pac. Ry. Co. v. Estes,
The judgment of the lower court is reversed and remanded, with instructions to sustain said demurrer.
All the Justices concur.