Dillon v. Moran

211 N.W. 67 | Mich. | 1926

Lead Opinion

Plaintiff's home is located on West Grand boulevard between Fort and Lafayette in the city of Detroit. This block is over a quarter of a mile long and is one of the older residential districts of Detroit. Plaintiff built his home there about a third of a century ago on a lot having a frontage of 100 feet and has since lived there. Adjoining him is the Howe homestead, so-called, which for many years was occupied by Mr. Howe and after his death by his family as a home. It has a frontage of 96 feet. Defendant Arthur O. Moran, who will hereafter be referred to as, defendant (the other defendants being nominal), recently purchased, the Howe homestead for the purpose of remodeling it and there conducting an undertaking establishment. When he commenced the work this bill was promptly filed to restrain such use. From a decree for plaintiff, defendant appeals.

We are satisfied that plaintiff would suffer material pecuniary loss if defendant should be permitted to convert the Howe homestead into an undertaking establishment. The real estate experts called by plaintiff vary in their estimates; the lowest being 20 per cent. and the highest being 50 per cent. As plaintiff's home is worth at least $60,000 it will be seen that the loss would be substantial. In the main, defendant's testimony was directed towards combating the plaintiff's claim that the district is a residential one. Upon this question we agree with the trial judge that plaintiff has fully sustained his claim. The question for decision is not what is the condition of districts north or south or east or west of this district, but what is the character of the particular district involved. The fact that business has reached *132 the district does not establish that it has entered it. The testimony and the photographs introduced in evidence are convincing that the district is a strictly residential district. There are many substantial homes, some single dwellings, some duplexes and some apartments; a few roomers are taken, and some of the places are rented, although in the main the homes are occupied by their owners. The particular district here involved has retained its residential character although outside of it in some directions business has crept in and become the predominant factor. It is utterly impossible to distinguish the instant case from Saier v. Joy, 198 Mich. 295 (L.R.A. 1918A, 825). In that case it was held that while an undertaking establishment was not a nuisance per se, it became such by intrusion into a strictly residential district. We there granted injunctive relief and in answer to some of defendant's contentions here, we call attention to the fact that plaintiff Saier in that case was the owner of an apartment house where he lived and others of plaintiffs took roomers in their homes. This did not deprive the district of its residential character and make it a business district and as such open to the conduct of an undertaking business. When that case was written there were but few cases on the subject, but it has been cited and followed in City of St. Paul v. Kessler,146 Minn. 124 (178 N.W. 171); Meagher v. Kessler,147 Minn. 182 (179 N.W. 732); Osborn v. City of Shreveport,143 La. 932 (79 So. 542, 3 A.L.R. 955); Cunningham v. Miller,178 Wis. 22 (189 N.W. 531, 23 A.L.R. 739). The same doctrine was announced in Beisel v. Crosby, 104 Neb. 643 (178 N.W. 272), and the supreme court of Washington, in Goodrich v.Starrett, 108 Wn. 437 (184 P. 220), reaffirmed its adherence to the rule announced in Densmore v. Evergreen CampNo. 147, 61 Wn. 230 (112 P. 255, 31 L.R.A. [N. S.] 608, *133 Ann. Cas. 1912B, 1206), upon which case we there relied.

The decree will be affirmed, with costs of this court.

BIRD, C.J., and SHARPE, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.





Concurrence Opinion

Funeral homes, during recent years, in great numbers have been removed from the business sections of cities, and have become established in purely residential districts.

An undertaking business is not a nuisance per se, and where one has been allowed to establish itself and carry on business as such in a residential part of a town no one may disturb its continuance. It must not be understood that any one, at any time, can complain of a funeral home in a residential section and compel its removal.

With this addition, I concur in the opinion of Mr. Justice FELLOWS in all respects.

BIRD, C.J., and SHARPE, CLARK, and McDONALD, JJ., concurred with SNOW, J.