198 Mich. 295 | Mich. | 1917
Townsend street, in the city of Lan
It is the claim of the plaintiffs, stated without unnecessary detail, that the value and desirability of their property will be materially decreased by the
On the part of the defendants it is insisted that they have for .a great many‘years engaged in their business; that they are licensed embalmers, and always have conducted, and will in the future conduct, their business in accordance with the rules of the State board of health, in a sanitary manner; that bodies of persons dying from communicable disease, other than tuberculosis and typhoid fever, will not be taken to their establishment; that there is no danger to the health of adjacent occupants from these diseases, or from the handling of any other bodies that may be brought there; that no noxious or disagreeable odors will escape the premises; that they purpose to tear down the frame part of the building and erect a brick part for their morgue and business on strictly sanitary lines; that the part of the house fronting on the street will have the appearance of a residence, that the funerals will be infrequent, and that the conduct of their business will in no way de
We are satisfied from the evidence in the case that the value of the plaintiffs’ property would be materially decreased by the maintenance of defendants’ business at the Lantz property. Many witnesses were called by the plaintiffs on this subject, and the testimony in opposition is very meager. We are convinced that such depreciation in value would be substantial, ranging from one-quarter to one-third of the value. This damage would be actual, and not visionary or speculative.
We do not find the claim of plaintiffs that there is danger of disease being communicated from dead bodies in the morgue-to those living in adjoining houses is sustained. The defendants have been in the undertaking business for many years. There is in the entire record no intimation but that they have always conducted their business in a healthful and sanitary manner, in accordance with the rules of the State board of health, and the record satisfies us that, when so conducted, the danger, if not entirely removed, is infinitesimal. The proofs show and are uncontradicted that no bodies of persons dying from communicable disease, other than tuberculosis and typhoid fever, would be taken to the morgue. Some stress is laid on the tuberculosis cases. But we are satisfied from the record, that, notwithstanding the lay opinion of this dread disease, there is no danger of its communication from a dead body to persons in adjoining houses, where proper precautions are taken in accordance with the regular method of embalming.
We are not so well satisfied that noxious odors will not escape defendants’ premises. Formaldehyde is extensively used by them in embalming, deodorizing, and sanitation. The more thorough and complete the sanitation, the more formaldehyde is used. It gives off a pungent odor, and it is quite doubtful to our minds that this odor would fail to reach adjacent houses, situated as close as these houses, especially in the summer time, when the plaintiffs would expect to have, and have a right to have, their windows open. The Saier apartments are within 13% feet of the house on the Lantz property, and there are 25 windows on the north side. The Johnson and. Quarmby houses are very close to thes line, and have numerous windows facing the Lantz house.
The defendants have failed to convince us that undertaking establishments with morgues are located in other cities in the strictly residential districts. While testimony tending to support such claim appears in the record, the testimony in rebuttal is persuasive that such establishments either border on, and are close to, business sections, or are in locations where the residential character of the district is giving away and business is breaking in.
The argument revolved quite largely around the question of whether the maintenance of an undertaking establishment and morgue in close proximity to a home would so affect the normal mind as to render its maintenance in a strictly residential district, such as this district is, a private nuisance, and as such abatable by a court of equity. Much testimony, both professional and lay, upon this subject was taken. Whether this may be the subject of opinion evidence is a mooted question. We think it requires no deep
We cannot overlook the right to engage in a lawful trade, nor the fact that the conduct of the undertaking business is not only lawful, but highly necessary, nor that it is not a nuisance per se. Nor can we overlook the right of the citizen to be protected in his home, and his right to the enjoyment there of that repose and comfort that are inherently his. The question here is not the restraining of defendants’ business, but the restraint of its intrusion into a long-established and strictly residential district. The cases
In the New Jersey case the injunction was refused, and the bill dismissed. We are not impressed that the opinion in that case makes clear that the locality involved was exclusively residential in character. From the opinion it does appear that a portion of complainant’s house was occupied for business purposes, and defendant had been conducting his business for 11 years in its then present location, which is spoken of as a “populous part” of the city, and the case seems to turn quite largely on the question of whether the business of an undertaker is a nuisance per se. The complainant in that case appeared to have been of a supersensitive temperament, while the rights of the parties should be measured by that which affects the normal person — not the supersensitive, on the one hand, or the hardened, inured, on the other.
In the Washington case the injunctive relief was granted, not upon the ground that the undertaking business is a nuisance per se, but that by reason of its location it might be or become one, and the right to injunctive relief to restrain the conduct of a business, not a nuisance per se, but one by reason of its location and surrounding conditions, is clearly pointed out; the court saying:
“For in this age, when population is becoming more and more congested in the cities, it would be manifestly unfair to grant injunctive relief only in those cases where the object attacked' was a nuisance per se, when other circumstances or conditions intervene which might tend to destroy the repose and comfort of a part of a city or town given over to homes. In this case, as in that, the element of comfort and re*302 pose in the enjoyment of the home becomes an essential element of our inquiry. For it is not only shown by the evidence, but it may be accepted as within the common knowledge of man, that the immediate presence of those mute reminders of mortality, the hearse, the chapel, the taking in and carrying out of bodies, the knowledge that within a few feet of the windows of one’s dwelling house, where the family sleep and eat and spend their leisure hours, autopsies are going on, that the dead are there, cannot help but have a depressing effect upon the mind of the average person, weakening, as the testimony shows, his physical resistance, and rendering him more susceptible to contagion and disease.”
And the following language from Ross v. Butler, 19 N. J. Eq. 294 (97 Am. Dec. 654), was quoted with approval:
“The law takes care that lawful and useful business shall not be put a stop to on account of every trifling Or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-refined person. But, on the other hand, it does not allow any one, whatever his circumstances or condition may be, to be driven from his home, or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. The maxim, ‘Sic utere.tuo ut alienum non Isedas,’ expresses the well-established doctrine of the law.”
We are persuaded that the correct result was reached and the proper rule announced by the Washington court. Nor are we able to distinguish in principle the instant case from the recent case of Barth v. Hospital Ass’n, 196 Mich. 642 (163 N. W. 62). That case was brought to restrain the erection and maintenance of a private insane asylum in a strictly residential district. There, as here, it was contended by the defendants that the maintenance of such an institution was not a nuisance per se; that the injury alleged was speculative and imaginary. There, as here,
“It must be conceded that the establishment of such an institution in close proximity to the residences of the plaintiffs, which are in a residential section of the city, would destroy the comfort, the well-being, and the property rights of the plaintiffs.”
We do not overlook the contention of the defendants that the writ of injunction is not one of right, but of grace. It should not issue out of hand, but should issue in cases where the right to such relief is clearly-established. Such we find this case to be. We have here a case of the maintenance of a business which, while not a nuisance per se, is such as to these plaintiffs by reason of its location in a strictly residential district; a business which will cause depression to the normal person, lowering his vitality, rendering him more susceptible to disease, and depriving his home of the comfort, repose, and enjoyment to which he is entitled. Coupled with this is the substantial financial loss, due to the depreciation in the value of his property, and the strong probability that added to the other discomforts he will be called upon to suffer will be noxious odors during the summer months.
The decree of the court below will be reversed, and one here entered in conformity with the prayer of the bill. Plaintiffs will recover the costs of both courts.
In view of the decision of this court in Barth v. Hospital Ass’n, supra, I concur in the result.