Frederick v. Brown Funeral Homes, Inc.

LE BLANC, Justice

(dissenting).

I recognize the fact that under the authorities cited in the prevailing opinion, the majority view in the country is that the establishment of funeral homes or parlors in strictly residential areas is considered a nuisance per accidens. The reason as- *81 given in many of the quotations contained in the majority opinion is that such establishments tend to create a depressing effect in that they constitute, for those living in the surrounding area, a constant reminder of death and thus produce an annoyance to the feelings of those individuals who don’t like to contemplate such a tragic event. I realize that that is not an unusual feeling among many individuals but I don’t believe that the business that is conducted by modern funeral homes or parlors, especially in the manner in which the public observes, is more of a reminder of death than is the funeral service that is conducted at a church in the same area, attended as it is by the toll of the funeral bell and the procession of automobiles carrying the mourners, following the funeral hearse. Churches, as we know, and as we learn from this very case because there are two of them, abound in purely residential districts in large cities as well as in towns and villages, and in most religions, as is also well known, the bodies of the dead are taken there for a last prayer and blessing before being buried in the cemetery. Cemeteries too, are, in many instances, located in the heart of residential areas and certainly the sight of the graves and tombs would seem to impress anyone, in my opinion, as being, more than any other object, a very constant reminder of our inevitable fate.

I fully respect the feelings of individuals who do not like to have their thoughts made to dwell on this most certain of all human experiences but in my humble opinion that is purely a personal emotion which I don’t think affects t’heir physical well-being, and if we are to be guided by any authority on this point I believe it can be found in the very decision of this court in the case of Moss v. Burke & Trotti, Inc., 198 La. 76., 3 So.2d 281, 285 , cited in the majority opinion. The court, after reviewing many authorities on the very point of conducting the business of a funeral home, concluded from them that “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 operations shall physically annoy the inhabitants.”

I believe too, as intimated in that case, that where, in a matter of this kind, it is only the individual’s personal emotions that are involved, they have to yield to the greater rights of a property owner which are provided for him in this State under the Articles of the LSA-Civil Code referred to in the dissenting opinion of Justice McCaleb, which after all, are merely an elaboration of the rule of law stated in the familiar Latin maxim: “Sic utere tuo ut alienum non laedas.” A person must so use his own as not to injure another’s property. But, as pointed out in the Articles of the Code, although he may not make any work on his property which may deprive his neighbor of the liberty of enjoying his own, *83 or which may cause damages to him, yet he is at liberty “of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.” Under Article 668 it would seem that an act which occasions only an inconvenience is not enough, there must be real damage. Under that view and under the holding in the case of Moss v. Burke & Trotti, Inc., supra, that the nuisance complained of must cause some physical annoyance, I am not inclined to follow the jurisprudence relied on in the majority opinion and I, therefore, respectfully dissent.