“While the common-law authorities relied upon and cited by the plaintiffs may be persuasive, they are not decisive of the issue in view of our codal articles and jurisprudence.”
How later courts described this case
- “While the common-law authorities relied upon and cited by the plaintiffs may be persuasive, they are not decisive of the issue in view of our codal articles and jurisprudence.”
Written by the judges who cited it.
The opinion
McCALEB, Justice
(dissenting).
I am sure that it is unpleasant to live next to a funeral home. Yet, in the absence of zoning ordinances or covenants in deeds .'running with the land prohibiting its location within a particular area, there is no authority under our law warranting the issuance of an injunction against the establishment of such a business in a residential-section of a city- — unless it is shown that? its operation is actually a nuisance in fact? by reason of the manner in which it is conducted rather than because of the nature of the business. Indeed, this court, in Moss v. Burke & Trotti, Inc., 198 La. 76 , 3 So.2d 281, 285 , has tersely stated the applicable principle, thus:
“ * * * In the absence of legal zoning prohibition, any business establishment-may be established or located in a residential district, however it may affect the property values, unless by its very nature, its operation shall physcally- annoy the inhabitants.” (Italics mine.)
- The foregoing quotation is nothing more than judicial recognition and application of the rules set forth in Articles 667, 668, and 669 of the LSA-Civil Code, which govern the instant case. Article 667-provides that, while a proprietor has the right to use his estate in any way he pleases, he cannot make any work on it which deprives his neighbor of the liberty of enjoying his own, “or which may be the cause of any damage to him.” Article 668 qualifies this principle by declaring that, while the owner of property may not make any work which damages his neighbor’s buildings, still he is at liberty to use his ground as he pleases “although it should occasion some inconvenience to his neighbor.” And Article 669 *79 limits Article 668 by stating, in effect, that an owner may not do work on his premises which causes inconvenience to his neighbor “by diffusing smoke or nauseous smell,” and that the question of whether the neighbor must suffer these inconveniences “must be determined by the rules of the police, or the customs of the place.” (Italics mine.)
In the case at bar, it is clear that Article 668 of the Code controls — for plaintiffs do not show that they will sustain physical damage, but only the inconvenience of being forced to come into daily contact with defendant’s business. The majority holding, that the intended operation by defendant of a funeral home constitutes a nuisance in fact, is unsound, in my opinion, because its net effect is to conclude that a funeral home in a residential district is a nuisance per se, despite denials that the business of burying dead is, of itself, legally objectionable. True enough, the majority ruling is supported by a vast weight of authority from other states. For my part, I can only say that I disagree .with the principle upon which those pronouncements are founded.
It is well settled (Borgnemouth Realty Co. v. Gulf Soap Corp., 212 Lá. 57, 31 So. 2d 488 , and the authorities there cited) that the difference .between a nuisance per se and a nuisance in fact lies in the proof and not the remedy. In the former, the thing is a nuisance as a matter of law, whereas, in the latter, the right to relief is dependent on averment and proof of the act charged as a nuisance.
In view of this, I experience difficulty in discerning why, if a funeral home is not to be regarded a nuisance per se, it should be, ipso facto, deemed to be a nuisance merely because it is established in a residential neighborhood, without proof of actual physical annoyance to the adjacent inhabitants. In each instance the nature of the business is exactly the same; difference of location alone should not render one illegal and the other not.
The courts that subscribe to a doctrine adopted by the majority say that a funeral home becomes a nuisance, when established in a residential section, because the operations conducted are reminders of death, which naturally affect the neighbors. But this is true of the mortuary business no matter where it is situated. Hence, those courts, which conclude that a funeral home is or is not a nuisance depending entirely upon its situation, and that it is a nuisance when located in a residential area, are not interpreting and applying the law; they are actually enacting zoning regulations,. thus usurping the function of the lawmaking bodies.
I, therefore, respectfully dissent.