178 Wis. 22 | Wis. | 1922
Lead Opinion
The judgment is challenged upon two grounds: first, that the evidence does not support the findings of fact made by the court; second, the findings do not support the judgment. We have carefully reviewed the record in this case in the light of the arguments presented by counsel and are convinced that there is ample evidence to sustain the findings of the trial court. No useful purpose would be served by setting out the evidence in great detail. The essential facts are stated in the findings of the trial court, which have been set out at length in the statement of facts.
The argument that the property is not located in a district occupied exclusively by residences is not persuasive. It appears from the evidence that in prior years certain wealthy residents of the city of La Crosse erected very elaborate homes in this vicinity, which, by reason of death and removal from the city, had been vacated by their original owners and they are not readily salable for anything like the amount of their original cost. It is argued that
The question of whether or not the findings support the judgment raises a question of law which, so- far as we are advised, has not heretofore been directly passed upon by this court. Is the business of' preparing dead bodies for burial with the necessary incidents thereof, including the making of post-mortems, the holding of funerals, and the removal of dead bodies to and from the premises, a nuisance when located and carried on in the residential section of a city? This question has been considered by the courts of other states, which have arrived at conclusions that are widely varying. No doubt in this as in other cases involving nuisances, a rule cannot be laid down to govern all cases. Each case must depend largely upon the particu
The injury complained of must be substantial and tangible and the discomfort created thereby susceptible to the senses of ordinary people.' Its character cannot be determined by its effect upon those of peculiarly sensitive feelings. Its actual effect must be judged by the degree of discomfort and injury produced upon the average person. Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629; Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609; Wahrer v. Aldrich, 161 Wis. 36, 152 N. W. 456.
While the circumstances are not the same in any two cases, we think it is well established that a person must use his property with reference to the health, comfort, and reasonable enjoyment of public or private rights by others. In order, to warrant the interference of a court of equity the acts complained of must be such as are offensive to the physical sense and by reason of such offensiveness'make life uncomfortable. As has been said, the result is not to be measured by its effect upon those of extreme sensitiveness. On the other hand, it is not to be measured by its effect upon those who have been accustomed to endure acts such as are complained of without annoyance. It appears in this case that the maintenance of the undertaking and embalming business has operated to materially decrease the. market value of the residences owned by the plaintiffs, has rendered such residences materially less desirable as homes, created in the plaintiffs and members of their families feelings of dread of contagious diseases and feelings of discomfort and dissatisfaction from the sights, noises, and odors incident to the business, and by the constant reminder of death the feelings of some of the plaintiffs and members of their families have been depressed to an extent which appreciably impairs their comfort and happiness.
The great weight of authority in this country is to the
While there are cases which hold the contrary doctrine, we think the rule as stated is the sounder and better rule. As was said by the supreme court of the state of Michigan: “It requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person.” Saier v. Joy, supra.
We think it is equally clear that maintenance of an undertaking and embalming establishment in a residential section must inevitably operate to decrease substantially property values, destroy the comfort and happiness of people residing in the immediate vicinity, and is an unwarrantable invasion of the rights of others.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). „ The appellants in this case having purchased certain real estate in a portion of the city of La Crosse where real estate for residence purposes was, from the natural course of events, depreciating rather than appreciating in value, are by the judgment herein prevented from using such real estate in the carrying on of a lawful and absolutely necessary business and on various grounds as stated in the sixth finding of fact quoted in the statement of facts above. That is because its presence decreased the market value of plaintiffs’ residence property and rendered that property less desirable as homes; because
I think the effect of this decision is to carry the doctrine of the right of a court of equity to interfere with the lawful use by another of the latter’s property far beyond the heretofore generally accepted doctrine in that regard.
An undertaking establishment when conducted properly — and no question is here raised but that the defendants exercised proper, reasonable, and more than ordinary care in the conducting of the business — is not a nuisance per se even when such undertaking establishment is located in a residence section of a city. 20 Ruling Case Law, 455 ; 29 Cyc. 1183.
It is necessary, therefore, that there should be some particular situation presented which makes that which is not a nuisance per se a special or particular nuisance. That the lawful use of defendants’ property may lessen the selling value of plaintiffs’ property is not a sufficient basis upon which the right to an injunction of this kind can be predicated. Northfield v. Atlantic Co. 85 N. J. Eq. 47, 95 Atl. 745.
The effect which a claimed nuisance has upon the exceptional individual is not the accepted standard. Its effect upon the sensibilities of the great mass of mankind or average citizen is the standard. 2 Cooley, Torts (3d ed.) 1245; 29 Cyc. 1192. Yet in this case relief was granted upon the idea that the existence of this undertaking establishment did have a depressing effect upon those of nervous temperaments, evidently considering them as differentiated from persons of the normal or ordinary temperament.
Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, 29 L. R. A. n. s. 49, involved the erection of a hospital for the treatment of cancer.
Cleveland v. Citizens G. L. Co. 20 N. J. Eq. 201, concerned the establishment of a gas works. ,
Barnes v. Hathorn, 54 Me. 124, concerned the maintaining of dead bodies in an overground family tomb adjacent to plaintiff’s residence.
Barth v. Christian P. H. Asso. 196 Mich. 642, 163 N. W. 62, held that the complaint there sufficiently alleged facts showing the right to interfere with the proposed erection of an insane asylum.
Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W. 713, upheld an injunction to prevent the deposit of refuse from a starch factory polluting a river to the injury of a lower riparian owner.
The only ones so cited involving an undertaking establishment are Densmore v. Evergreen Camp No. 147, W. O. W. 61 Wash. 230, 112 Pac. 255, where the building proposed to be used for - such purpose was but three or four feet from the plaintiff’s residence, and the evidence showed danger of infection and contagion; and Saier v. Joy, 198 Mich. 295, 164 N. W. 507, where the proposed establishment was within thirteen and one-half feet of residence property, and with a finding that noxious gases did reach the adjacent houses.
In the case at bar there is an open space of sixty-five feet on one side and seventy-five feet on the other between defendants’ place and the nearest residences, and no substantial showing of actual or threatened harm.
In any event I think that no more should have been done than direct that any particular' features of defendants’ business or way of conducting it should have been prohibited rather than the business as an entirety. If the sign or night light or some other feature were too remindful of the depressing idea of the inevitable mortality which surrounds us from the cradle to the undertaking establishment and which the contemplative mind cannot escape having recalled to him by falling leaf, November wind, and the newspaper accounts of Sunday automobile accidents — all beyond remedy by injunction, — then such particular objectionable features might be eliminated or changed by injunction rather than the entire destruction of a going and legitimate business. Such milder form of cure was recognized in cases like Mackenzie v. Frank M. Pauli Co. 207 Mich. 456, 174 N. W. 161; Weaver v. Kuchler, 17 Okla. 189, 199, 87 Pac. 600.