Opinion
16058
March 11, 1948.
Appeal from Common Pleas Circuit Court of Florence County; L.D. Lide, Judge.
Suit by Mary Evelyn Brown Young and others against Claud W. Brown to enjoin defendant's use of his realty for cemetery purposes. From a judgment overruling a demurrer to the complaint, the defendant appeals.
Judgment affirmed.
Messrs. Royal Wright and Emil T. Cannon, of Florence, for Appellant, cite: As to allegations of complaint being insufficient to constitute a cause of action for injunctive relief: 201 S.C. 88, 21 S.E.2d 577. As to the extent of rights in property acquired by ownership: 50 C.J. 731, 732, 779, 780; 46 C.J. 653; 159 F.2d 167, 169. As to what constitutes a "nuisance" and what does not: 244 U.S. 205, 222; 46 C.J. 676, 677, 679; 5 R.C.L. 235, 236. As to the law protecting material rights but not catering to tastes or convenience: 46 C.J. 677; 43 N.J. Eq. 478, 11 A. 490, 492. As to a demurrer admitting facts well pleaded but not admitting any legal conclusion that may appear in the complaint: 190 S.C. 421, 3 S.E.2d 198; 203 S.C. 410, 27 S.E.2d 573.
Messrs. Willcox, Hardee, Houck Palmer, of Florence, for Respondents, cite: As to the demurrer being properly overruled: 201 S.C. 88, 21 S.E.2d 577. As to a cemetery being a "nuisance": 201 S.C. 88, 21 S.E.2d 577. As to the area involved being a residential area: 201 S.C. 88, 21 S.E.2d 577.
Order of Judge Lide, referred to in the opinion, follows:
This is a suit in equity for injunction. The complaint alleges that the plaintiffs are the owners of lots or parcels of land purchased for residential purposes in the area involved herein, and upon some of which residences have already been erected. The defendant is the owner of a tract of land of approximately fifty acres situate in the area, and is about to convert this acreage into a cemetery. Alleging that the maintenance and operation of a cemetery at the place in question will constitute a nuisance, the plaintiffs are seeking an injunction to enjoin the defendant's use of his property for that purpose. The suit is brought on behalf of the plaintiffs and of other persons similarly situated who may hereafter be made parties to the cause.
The defendant has demurred to the complaint on the ground that for the reasons set forth in the demurrer the complaint does not state facts sufficient to constitute a cause of action for injunctive relief.
The complaint alleges that the lands of the plaintiffs and also of the defendant are parts of a tract of approximately two hundred and seventy-four acres, situate on both side of U.S. Highway No. 76, at a point about three miles west of the city limits of the City of Florence. The lands on the south side of the highway were divided into parcels of four, five, six, and seven acres, while the lands on the north side of the highway were divided into somewhat larger tracts, and the land owned by the defendant consists of three of these tracts, aggregating about fifty acres, on the northern side of the highway.
A plat of the original tract made in 1937, and duly recorded, shows the subdivision. This property and other nearby lands are described as a residential area, and it is stated that the prices at which the parcels in the subdivision in question were sold to the various owners are comparable to the prices paid for residential lots in the suburban areas in the vicinity of the City of Florence.
The highway above mentioned was projected about the year 1936 and was completed in the year 1938. As stated in the complaint, "the body of land has been gradually and consistently developed into one of the most desirable residential areas near the City of Florence, that commodious, modern and costly suburban homes have been built upon at least five of the tracts of land, into which the larger body was subdivided, and at least fifteen or twenty of the other tracts of land have been sold to plaintiffs herein, who purchased the same for the sole and specific purpose of constructing dwellings thereon; that one or more dwellings are now in the course of construction in this area, and that quite a number of the plaintiffs would have heretofore commenced construction of homes on the tracts acquired by them, except for the scarcity of labor and materials for home building incident to World War II."
The plaintiff Mrs. Young purchased her tract on the north side of the highway, containing ten acres in 1938, and erected thereon and occupies with her family "one of the most modern, commodious and convenient large residences in that area." This house is built on a knoll which overlooks the defendant's property. Mrs. Young's husband has been unable to engage in his usual business activities for a number of years because of a severe cardiac condition "which renders him unusually nervous and susceptible to disturbances or annoyances." Three other excellent residences in the area across the highway from defendant's land were erected by certain plaintiffs in 1939 and 1940, and as already stated the erection of a number of additional residences is contemplated.
The main entrance of the proposed cemetery would be across the highway from the residence of the plaintiff Mrs. Burch. The front door of this residence would face the cemetery, and the screened porch on one side of the house looks out upon the projected cemetery. It is alleged that Mrs. Burch is peculiarly sensitive to the realty of death and burial, as the result of a recent bereavement in her family, and is unusually nervous and susceptible to the thought and idea of burying persons.
The plaintiff Fowler acquired his tract in the area in question in 1938 and has recently commenced the construction of a dwelling house thereon.
Two other parcels in the area, aggregating not quite twenty-seven acres, were acquired by the husband of the plaintiff Mrs. Ada G. Dawson, to wit, Dr. George R. Dawson, at a cost of over $5,600.00, for the purpose of erecting a commodious and modern dwelling as soon as conditions permit. It is alleged that if the cemetery project is carried out, this property "would be rendered absolutely valueless for residential purposes, and its value for any other purposes would be greatly depreciated and damaged."
The defendant acquired his tract of land in January, 1946. It is alleged that he was aware of the fact that the land was in a "residential area," and that he purchased the property through a third party, "so that it would not be known to the seller that it was contemplated to use the tract of land for other than residential purposes."
It is further alleged that when the plaintiffs learned of the defendant's acquisition of the property "they made known to him their objections to its use for the purposes intended by him, and that the defendant laid aside any plans he might have had for developing it as a cemetery or memorial park, at the request of the plaintiffs." Recently, however, he caused a notice to be served upon a committee representing the plaintiffs that he intended to proceed with his plans to use his land as a "cemetery or memorial park." And operations to this end have begun.
The factors in the projected cemetery which the complaint charges render the enterprise a private nuisance as to the plaintiffs and others in the same situation are described as follows:
That the cemetery "will certainly depreciate, devalue and irreparably damage the property and homes of the plaintiffs, and render the whole neighborhood an area of gloom and depression instead of one in which happy, comfortable and cheerful home life prevails, and while defendant intends to call and refer to it as a memorial park, it will nevertheless be a place where the dead are constantly being buried, funeral processions in and out will be constantly recurring, bereaved members of families will be constantly visiting and expressing grief, audibly and otherwise at the passage of loved ones, and it will be in truth and in fact a cemetery or graveyard, all of which will inevitably and necessarily spread gloom in the community, and will materially interfere with the family life of the plaintiffs in said community, resulting in depression, nervousness, sleeplessness, excitement of children; will require the re-arrangement in the families of their sleeping quarters and the use of open air porches, and will inevitably affect the habits of servants in the community, and the ability of the plaintiffs to procure the service of negroes, upon whom the plaintiffs largely depend for such services, and who are, as a matter of common knowledge, known to have an aversion to working or being near a cemetery or graveyard, and will otherwise have a deleterious and damaging effect upon the health, morale and happiness of all those who now reside in the said community or contemplate building therein."
There are also allegations on information and belief that the defendant intends to erect a "singing tower" from which music would be played and bells tolled from time to time, etc. But at the hearing of the demurrer, counsel for the defendant specifically stated that this was not contemplated and would not be done. Hence I have treated the case as if these allegations were omitted.
The complaint further alleges that whereas the defendant can advantageously utilize or sell his property for residential purposes without suffering any financial loss (in the event of the granting of an injunction), the large investments of the plaintiffs in their homes will be destroyed if the defendant is permitted to carry out his plans; further, that at this time the defendant has incurred very little if any outlay in connection with the cemetery project, and that whatever such outlay may be, it was incurred after notice from the plaintiffs of their intention to seek an injunction.
The foregoing does not embrace all of the allegations of the complaint, but fairly represents, I think, the factual case upon which the plaintiffs seek an injunction, and includes the material allegations of the complaint, upon the sufficiency of which the disposition of defendant's demurrer depends.
The specific grounds upon which the demurrer relies to show that the complaint does not state a cause of action are as follows:
(1) That it appears upon the face of the complaint "that the allegedly contemplated acts of the defendant do no constitute a nuisance per se"; (2) that it is not alleged that the intended use of the defendant's property would interfere with ordinary physical existence or would offend any of the physical senses of the plaintiffs; (3) that the only allegations of injury in the complaint are that "`a constant reminder of death' will produce `gloom and depression,' adversely affect `morale and happiness,' `depreciate' the value of plaintiffs' adjacent land, and similarly insubstantial injuries to taste, fancy, and imagination of plaintiffs, which factors do not constitute a nuisance."
The theory of the complaint is, of course, that as to the plaintiffs and others in the same situation, the action is one to enjoin a private nuisance, not indeed a nuisance per se but a nuisance per accidens. The defendant's demurrer does not challenge the right or capacity of the plaintiffs to invoke injunctive relief against a private nuisance; it rests solely upon grounds which deny the existence of a cause of action, in that, there are no elements of legal injury or damage stated in the complaint which would justify the conclusion that the maintenance of the proposed cemetery would result in a nuisance.
Counsel have not cited any South Carolina case specifically dealing with the principles governing the determination of whether or not, or if so, under what circumstances, the maintenance of so necessary an institution as a cemetery constitutes a private nuisance, and my own independent research has disclosed none. We have for guidance, however, the decision of our Supreme Court in the case of Fraser v. Fred Parker Funeral Home, 201 S.C. 88, 21 S.E.2d 577, wherein the principles of law relating to the maintenance and operation of a funeral home in a residential district are fully determined.
Of course, there are many physical and practical differences between the operation of a funeral home and the operation of a cemetery, in relation to the question of whether one or the other, or both, constitute a nuisance under the facts of a particular case. But the decision in the Frazer case is nevertheless applicable here, because it holds that conditions such as are alleged in the complaint before the Court are material elements of threatened injury and damage constituting a nuisance.
As pointed out in the Fraser case, there is considerable diversity in the decisions of the appellate courts of America as to whether or not the claim of the creation, or threatened creation, of a nuisance can be rested upon such facts as that the proposed project will cause feelings of distress to families in the vicinity, and constitute a constant reminder of death, and thus appreciably impair the happiness, and lower the morale and weaken the powers of resistence to disease of nearby residents, and hence depreciate the value of their properties. That case was argued twice in the Supreme Court and ended with a decision by a divided Court. The majority opinion of the Court (two dissenting opinions being filed) definitely held that considerations of the nature of those set forth in the complaint in the instant case are determining factors on the question of whether the operation of a funeral home constitutes or would constitute a nuisance. And the contention of the defendant that the complaint now before the Court is defective, in that, it does not allege that the defendants project "would interfere with ordinary physical existence or would offend any of the physical senses of the plaintiffs" is specifically rejected by the Supreme Court.
Although the Fraser case relates to a funeral home and not a cemetery, the principles announced by the Supreme Court involve the law of private nuisance, and since the presence of factors such as were shown to exist in the Fraser case, and which were of like character to those alleged in the complaint in this case, was held to constitute a private nuisance, the complaint cannot, in my judgment, be deemed demurrable.
As I read the complaint and the demurrer, it may be said that the allegations of the complaint are based upon the ruling in the Fraser case as to what character of injury and damage constitutes a private nuisance under the pertinent circumstances, while the allegations of the demurrer are substantially a negation of the majority holding in the Fraser case, and an assertion in practical effect of the views expressed in the dissents in that case; whereas, the decision of the Court represented by the majority opinion is of course controlling authority.
In view of the foregoing, and bearing in mind that for the purpose of disposing of the demurrer I must accept as true all of the material factual allegations of the complaint, I am constrained to hold that the complaint is not subject to demurrer on any of the grounds advanced by the defendant.
It is, therefore, ordered, that the demurrer interposed by the defendant herein be, and the same is hereby, overruled, and that the defendant shall have twenty days after written notice to his counsel of the filing of this order within which to answer the complaint.
March 11, 1948.
This is an appeal from an order overruling a demurrer to the complaint. A clear summary of the material allegations of the complaint and the grounds of demurrer will be found in the order appealed from, which will be reported. In appellant's brief the questions to be determined on this appeal are stated as follows:
"(1) Is a cemetery a nuisance when located in a residential area, merely because it is a reminder of death and thereby inspires, in some neighbors' minds, `gloom and depression,' even though it may be so located and operated as not to offend any of their physical senses?
"(2) Is the area involved in the instant case a `residential area' in the same sense as the area involved in the Fraser case, as to which a funeral home was enjoined?"
It is apparently conceded that the first question must be answered in the affirmative if we adhere to our decision in Fraser et al v. Fred Parker Funeral Home, 201 S.C. 88, 21 S.E.2d 577. Appellant sought and was granted permission to criticize the soundness of the principles adopted by a majority of the Court in the Fraser case and has devoted the major portion of his brief to an interesting and able discussion in favor of the view advanced in the dissenting opinions. After mature consideration, we are still of the opinion that this case was properly decided.
The second question seems not to have been considered or passed upon by the Court below and can hardly be said to be included in the grounds upon which appellant demurred. However, both appellant and respondents have argued this question in their briefs and in connection with it the further question as to whether the homes of respondents are situated so as to be affected by the proposed establishment of this cemetery. As these questions have been argued and will again arise when the case is tried, we may appropriately discuss the general principles to be applied in determining whether the establishment and maintenance of a cemetery should be enjointed as a private nuisance.
It is rather generally held in other jurisdictions that the mere presence of a cemetery, unattended by injurious or offensive drainage or fumes, does not constitute a private nuisance because it might be offensive to the esthetic sense of those residing nearby and render a neighborhood less attractive. In 10 Am. Jur., Cemeteries, Section 16, page 498, it is stated: "There is a well-established rule that a cemetery is not a nuisance per se. A place of interment, however, may be a nuisance as a matter of fact, depending on its location, extent and manner of use, including mode of burials. A cemetery does not constitute a nuisance merely because it is a constant reminder of death and has a depressing influence on the minds of persons who observe it, or because it tends to depreciate the value of property in the neighborhood, or make the vicinity less attractive and is offensive to the esthetic sense of an adjoining proprietor. On the other hand, where the location or maintenance of a cemetery endangers the public health, either by corrupting the surrounding atmosphere, or the water of wells or springs, it constitutes a nuisance." Also, see annotations in 31 L.R.A., N.S., page 945, and 87 A.L.R., page 760, where a number of cases are cited in support of the statement that "the mere proximity to the premises of others does not render a cemetery a nuisance, because of their mental disquietude, superinduced by fixed or recurring reminders of death."
In Monk v. Packard, 71 Me. 309, 36 Am. Rep. 315, the court, in concluding that a private burying ground situated near the plaintiff's dwelling did not constitute a private nuisance, observed: "A repository of the bodies of the dead is as yet indispensable, and wherever located, it must ex necessitate be in the vicinity of the private property of someone who might prove its market value injuriously affected thereby * * * The human contents of these graves cannot, as they lie buried there, offend the senses in a legal point of view. The memorial stones alone affect the senses, and the same would result to the superstitious, though nothing human lay beneath them." In Rea v. Tacoma Mausoleum Association, 103 Wn. 429, 174 P. 961, 962, 1 A.L.R. 541, the Court, after an extended review of the authorities, said: "No decision has been called to our attention wherein any court has awarded injunctive relief, rested upon the sole ground of the mere presence of a cemetery or other place of sepulture, unattended by injurious or offensive drainage or fumes, sensible to the complaining party, and our own search leads us to believe that no such decisions have been rendered."
It is rather interesting to observe that among the courts adhering to the foregoing views and refusing to enjoin the establishment and maintenance of a cemetery on account of its close proximity to a residence are some that take a different view as to a funeral home and enjoin its establishment and operation in a strictly residential section. To illustrate: In McGowan et al. v. May, 186 Ga. 79, 196 S.E. 705, the Supreme Court of Georgia sustained an injunction against the threatened establishment of an undertaking business in a residential neighborhood. The same Court, in Harper et al. v. City of Nashville et al., 136 Ga. 141, 70 S.E. 1102, 1103, refused under similar circumstances to enjoin the establishment and location of a cemetery. It was there stated: "Cemeteries are a necessity. A place where the dead may be given decent Christian burial must be established, and the location of such must necessarily be upon some tract of land more or less suitable and commodious; and it is impossible to find a tract of land that is not contiguous to the lands of someone else. And inasmuch as cemeteries must be established, and should be located where they are reasonably accessible, it is rarely possible to so fix their location, when they are designed for the use of a populous town or city, where they will not be in more or less proximity to some residence; and unless the soil of the land used as a cemetery and that of the contiguous owners is such as to cause a drainage which will produce a contamination of the waters, thereby putting in jeopardy the health or lives of the owners of the contiguous lands and the health of their families, or unless the air would be contaminated, courts of equity will not interfere by the grant of injunctive relief to prevent the establishment and location of the cemetery. Cemeteries are not per se nuisances, and it is only in exceptional cases that their establishment and location would be enjoined by a court of equity." Also, see Hallman et al. v. Atlanta Child's Home et al., 161 Ga. 247, 130 S.E. 814, where the Harper case was followed and the foregoing language quoted with approval.
The question of whether the establishment and maintenance of a cemetery in close proximity to a residence may be enjoined as a private nuisance appears to be one of first impression in this State. In City Council of Charleston v. Wentworth Street Baptist Church, 4 Strob. 306, the Court upheld the validity of an ordinance prohibiting the establishment of any new burial grounds within the City of Charleston. In denying the claim of the landowner that he was entitled to use his land for any lawful purpose, the Court said: "Shall the owner of a city lot be upheld, by the court, in his appeal to vindicate his absolute dominion in the soil, and his right to use it as he pleases? Such a claim would equal, in intensity of selfishness, the example put by Lord Bacon, of the man who would set his neighbor's house a-fire to roast his egg." In this connection, we may further digress by stating that statutes have been passed in some States restricting the location of cemeteries and prohibiting their establishment within a certain distance of a dwelling without the consent of the owner. 14 C.J.S., cemeteries, § 16.
In determining whether an establishment or business should be declared a private nuisance, due regard must be had to the correlative rights of the parties — the right of one generally to make such lawful use of his property as he may desire and the right of the other to be protected in the reasonable enjoyment of his property. The courts have encountered great difficulty in undertaking to harmonize these rights. Necessarily there must be some element of compromise. Then, too, regard must be had to the interest of the public. In the evolution of the law of nuisance, elements are now considered which were not recognized at common law. Many things now uniformly held to be nuisances would not have been so classified under the definition given by Blackstone. The older authorities emphasized the right of the property owner to use his property for any lawful purpose but the trend of modern authority is to give more consideration than formerly to the right of the owner to the reasonable and comfortable enjoyment of his property. And comfortable enjoyment means mental as well as physical comfort. Nuisance is a question of degree depending upon varying circumstances. Resort must always be had to sound common sense and due regard should be given to the notions of comfort and convenience entertained by persons generally of ordinary tastes and susceptibilities. A lawful business should not be enjoined on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-sensitive person, but on the other hand no one, whatever his circumstances or condition may be, should be compelled to leave his home or live in mental discomfort, although caused by a lawful and useful business carried on in his vicinity. Emotions caused by the constant reminder of death may be just as acute in their painfulness as suffering perceived through the senses.
Applying the foregoing principles to the question before us, we think that the maintenance of a cemetery may under certain circumstances constitute a private nuisance even though not detrimental to the health or offensive to the physical senses of those living nearby. It may be readily conceded that the mere fact that a body is buried near a residence is not reasonably calculated to cause a depressed feeling or affect the cheer and happiness of the home and we may assume, without deciding that the constant view of markers or tombstones over the graves would probably not produce a depressing effect upon the mind of the average person, but these are not the only incidents connected with a cemetery. There is the passage of the funeral procession with its mourners and the last rites at the grave followed by frequent visits of the bereaved persons, all of which are conducive to depression and sorrow and when constantly recurring in close proximity to a residence may deprive the home of the comfort and repose to which the owner is entitled. Proper respect for the dead and those in grief and sorrow naturally imposes a restraint at such times on the usual laughter and play of children and social and family gatherings could not be held under cheerful surroundings. The foregoing circumstances may not affect the comfort and repose of the home to the same degree as a funeral home adjacent to or across the street from a residence but there do exist in connection with a cemetery many of the considerations which have prompted the courts to declare a funeral home a private nuisance.
It does not follow from these observations that every home owner in a residential area is entitled to complain of the establishment of a cemetery in his vicinity. As stated in one of the concurring opinions in the Fraser case ( 201 S.C. 88, 21 S.E.2d 577, 585), in a discussion of a funeral home, "Cases may arise in a residential area where those complaining are so far removed that they could not reasonably be said to be affected." Consideration must also be given to the relative size of a cemetery and the frequency of burials therein. One who lives close to a small cemetery in a rural community where there is only an occasional burial would not be affected to the same extent as one living adjacent to the entrance of a cemetery serving a large metropolitan area where funerals are almost daily occurrences. Regardless of how much one may be affected by the location of a cemetery near his home, a cemetery is, as pointed out in some of the cases, a necessity. It must be located adjoining the property of someone and be reasonably accessible to the community which it serves. The area around a large city may be so thickly populated that the only location available is in a more or less residential section. Under these circumstances, private convenience must yield to the convenience of the public. At one time cemeteries were usually established and maintained by municipalities or other units of government. It is common knowledge that they are now frequently established and maintained by private interests for commercial gain and it is rarely necessary for their intrusion into an exclusively residential section. It is needless to add that one is not in a position to complain who builds or buys a home near a cemetery already established. All of the foregoing circumstances and perhaps others must be considered in determining whether the establishment and maintenance of a cemetery would constitute a private nuisance. It is generally recognized that it would be difficult, if not impossible, for the courts to state any fixed or arbitrary rule governing cases of this kind. Each case must be determined by the facts and circumstances developed therein. This was the final conclusion reached by a majority of the Court in the Fraser case involving the establishment of a funeral home in a residential section.
We shall now briefly consider the decisions from other jurisdictions heretofore mentioned. Some of these cases involved the enlargement of a previously established cemetery and for this and other reasons may be distinguished from the instant case on the facts. A number of them were decided years ago and in jurisdictions which denied injunctive relief unless the alleged nuisance was detrimental to the health or offensive to the physical senses of those complaining — a view which was rejected by us in the Fraser case. The rule laid down in some of these decisions is, in our opinion, too rigid and would, if literally applied, under some circumstances deprive the home owner of the peace, comfort and repose to which he is entitled.
In the instant case, all the facts stated in the complaint must be regarded as admitted for the purpose of considering the demurrer and the complaint must be given a liberal construction. We think enough is alleged to justify overruling the demurrer. Nothing contained herein shall be construed as any intimation of opinion upon the merits. The case must be determined on the facts developed from the testimony.
For the reasons stated by Judge Lide in the order appealed from and supplemented by the views herein expressed, the demurrer was properly overruled.
Appellant is allowed twenty days from the date of the filing of the remittitur in which to answer.
Judgment affirmed.