Frederick v. Brown Funeral Homes, Inc.

On Application for Rehearing

PONDER, Justice.

In this suit the plaintiffs sought to enjoin the establishment or operation of a funeral home in a purported residential ■section of the Town of Covington. The trial court granted a preliminary injunction. The defendant was granted a devolutive appeal and applied to this court for writs which were granted. This court issued a writ of certiorari with a stay order and ordered the plaintiffs to show cause why the" relief sought in the defendant’s application for writs should not be granted. Upon hearing of the rule, this court recalled the writs and remanded the cause for trial on the merits. A rehearing is now submitted for our consideration.

The plaintiffs opposed the granting of the rehearing and contended that under Rule XII, Section 4 of the Rules of the Supreme Court, the rehearing was improvidently granted since the judgment did not finally dispose of the case. This rule is without application to the present case and it is expressly provided in Section 5 of Rule XII of the Rules of the Supreme Court that a petition for rehearing will be considered when the Court has decided a case on a writ of review to the Court of Appeal, or under the court’s supervisory jurisdiction, the same as if the case had been decided on appeal.

Our main concern in granting the rehearing was whether or not the provisions of Articles 667, 668 and 669 of the LSA-Civil Code were properly interpreted in the majority opinion in arriving at the conclusion that the operation of the funeral home was a nuisance in fact or per accidens. As we take it the majority opinion is to the effect that the funeral home became a nuisance because of its location and enjoined its operation before it was established. According to the record the funeral home was not in operation at the time the suit was filed and tried.

On reconsideration we have arrived at the conclusion that the injunction should be set aside.

We are governed in this controversy by Articles 667, 668 and 669 of the LSA-Cívil Code, which read as follows:

“Although a proprietor may do with • his estate whatever he pleases, still he can not make any work on it, which *85 may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” Article 667, LSA-Civil Code.

“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s house, because this act occasions only an inconvenience, but not a real damage.” Article 668, LSA-Civil Code.

“If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring 'houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulatéd, their sufferance must be determined by the rules of the police, or the customs of the place.” Article 669, LSA-Civil Code.

In the case of Borgnemouth Realty Company, Limited v. Gulf Soap Corporation, 212 La. 57, 65 , 31 So.2d 488, 490 , this court stated:

“ ‘From the point of view of their nature, nuisances are sometimes classified as nuisances per se or at law,, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or .structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings.’ 46 C.J. 648, Section 5. See, .also, 39 Am.Jur. 289, Section 11. As pointed out in the latter authority, ‘The difference between a nuisance per se and a nuisance in fact lies in the proof, not in the remedy. In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality, and the right to relief is established by averment and proof of the mere act. But whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is necessary. The act or thing complained of must be shown by evidence to be a nuisance under the law, and whether it is or is not a nuisance is generally a question of fact.’ ”

We have carefully considered the opinion handed down in t'he case of Moss v. Burke & Trotti, Inc., 198 La. 76, 87 , 3 So.2d 281, 285 , and have reached the con *87 elusion that the pronouncement made therein is a proper interpretation of our codal articles, viz.: “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 physically annoy the inhabitants.”

The operation of a funeral home is a lawful enterprise, Moss v. Burke & Trotti, Inc., supra, and under the provisions of Article 667 of the LSA-Civil Code the defendant has a right to do with his estate as he pleases provided he does not cause damage to his neighbor. As' pointed out in the majority opinion the operation of a funeral home is not a nuisance per se and it is impossible for us to state at this time whether it would be operated in such a manner as to result in a nuisance. Mere inconvenience to an adjoining property owner would not necessarily constitute a nuisance. Article 668 of the LSA-Civil Code. There is no zoning ordinance or police regulation prohibiting the establishment of such an enterprise in any portion of the town and the evidence fails to show that the custom of the place would prohibit same. From a careful reading of the aforementioned articles of the LSA-Civil Code, it is apparent that, unless the establishment and operation of the funeral home is prohibited by rules of police or custom of the place, it cannot be enjoined prior to its operation and then only if it is operated in such a manner as to cause damage to those living in neighboring houses.

The case of Osborn v. City of Shreveport, 143 La. 932 , 79 So. 542 , 3 A.L.R. 955 , is only authority for what it held, that an ordinance prohibiting undertaking shops except on the business streets of the city is valid, and whatever else was said is purely obiter dicta arid of no controlling effect in the case at bar.

This court has on numerous occasions refused to enjoin the establishment or erection of a lawful business simply on the ground that it might be conducted so as to become a nuisance. Bell v. Riggs & Bros., 38 La.Ann. 555 ; Lewis v. Sandell, 118 La. 852 , 43 So. 526 ; Canone v. Pailet, 160 La. 159 , 106 So. 730 ; Graver v. Lepine, 161 La. 97 , 108 So. 138 .

In Bell v. Riggs & Bros., cited supra, 38 La.Ann. 555, 556 , this court said:

“The rule is founded in reason and firmly established-by authority that injunction will not lie against a prospective nuisance except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance violative of legal right. Wood, Law of Nuisances, para-. 103, 104.”

Likewise in Lewis v. Sandell, cited supra, 118 La. 852, 859 , 43 So. 526, 529 , the court held “that a lawful business not yet in existence and not a nuisance per se *89 could not be enjoined on the face of the papers until evidence had been adduced to establish same”.

Again in Canone v. Pailet, cited supra, 160 La. 159, 162 , 106 So. 730 , and Graver v. Lepine, cited supra, 161 La. 97, 100 , 108 So. 138, 139 , this court held: “A lawful business is never a nuisance per se, and no one has the right to prevent the establishment of such business for fear that it might be conducted so as to become a nuisance.” Citing ample authority to support the statement.

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.

For the reasons assigned, it is now ordered that the rule be discharged, and the preliminary writ of injunction dissolved. The case is remanded to be tried on the merits consistent with the views herein expressed. Plaintiffs-respondents to pay all costs incurred in this court; all other costs are to await the final disposition of the case.