Momeier v. John McAlister, Inc. , 203 S.C. 353 ( 1943 )

I am in complete agreement with the opinion of Mr. Justice Stukes herein, as far as it goes, but I wish to emphasize the fact that an almost unanimous line of authority in the United States, including the Federal Courts, holds that an owner of residential property is entitled to injunctive relief against the violation of a zoning ordinance when it appears that special damage, by way of diminution in value of his property, has been or will be suffered by him as a result of the violation of such ordinance. 129 A.L.R. (Annotation), 885.

That rule having been adopted by this Court by unanimous opinion, upon the second appeal herein, 193 S.C. 422,8 S.E.2d 737, 129 A.L.R., 880, and being the law of the case, it occurs to me that the only issue of merit in the present appeal is whether or not the evidence shows that plaintiff, an adjoining property owner occupying his premises for residential purposes, has been, or will be, specially damaged by way of depreciation in value of his property as a result of defendants' deliberate violation of the zoning ordinance of the City of Charleston, adopted in 1931 pursuant to the authority of an enabling statute of the General Assembly.

In the aggregate the witnesses on each side were approximately the same, but of twenty-five real estate agents from the cities of Charleston, Columbia, Greenville, Spartanburg, Florence, Anderson and Orangeburg, approximately twenty of them, including one offered by defendants, gave it as their opinion that the location and maintenance of a funeral home or undertaking business in a residential area causes a depreciation in value of the adjoining property, some basing their testimony allegedly upon their experience, and one of these citing sales figures of the identical properties before and after the establishment of a funeral home in the neighborhood, some basing it upon their observation, and some predicating it upon their knowledge of those elements that adversely affect the desirability and value of residential property. While I regard the testimony of many of these witnesses as being direct and positive in character, yet, if it be considered as opinion evidence only, surely, in matters affecting the value of real property, experienced real estate agents may properly be regarded as experts; certainly they are more apt to be better informed than the average layman, or lawyer, or jurist, about those things that substantially impair the value of residential property, and their evidence, in the absence of any showing of bias, prejudice, or corruption, should be accorded the highest probative value. Unquestionably, as I review the evidence in the case, the overwhelming weight thereof establishes the fact, as found by the learned Circuit Judge, that maintenance of a funeral home in a residential district causes depreciation in value of the adjoining property.

It may not be amiss to add that the correctness of the opinions of the great majority of the real estate agents testifying at the trial finds strong support in the historical fact that all over this nation in recent years legislative bodies of the several states have enacted statutes permitting the zoning of municipalities into residential and commercial districts, and many of the larger cities have not hesitated to take advantage of such enabling acts. As all legislative bodies, whether of commonwealths or municipalities, are sensitive to majority public opinion, it would seem that such action by State Legislatures and by City Councils confirms the conviction of the writer that large numbers of normal citizens in many States are convinced that the maintenance of business enterprises, of whatever nature they may be, whether funeral homes or foundries, grocery stores or cafes, industrial plants or mercantile establishments, should be in districts removed from those occupied by the home-owners of the nation. Speaking for myself alone, as I am throughout this opinion, which has not been submitted to my brethren for their concurrence, I am not prepared to concede that the rights of those engaged in business are paramount to the rights of owners of long-established residences, regardless of the humbleness of their station in life, or that the latter, in order to enjoy that peace, quiet, comfort and response that homes are made for, must abandon their inheritances to the onward march of industry and move to the suburbs of municipalities. Surely the rights of home owners, which the legislative branch of this commonwealth has sought to protect against the intrusion of commercial enterprises, should be preserved inviolate by the judicial branch thereof when, in defiance of legislative edict and municipal fiat, residential areas of our cities and towns are invaded by business interests.

For myself, therefore, I am confirmed in the opinion that, in actions arising under zoning ordinances, this Court should adopt the rule that, when a district zoned for residences is invaded by a proscribed business enterprise in violation of a valid zoning ordinance, it will assume, or take cognizance of the fact, or at least presume, that such violation will cause special damage by way of diminution in value of an adjoining home owner's property, and will enjoin such unlawful intrusion at the instance of the aggrieved property holder.

And while, as pointed out in the opinion of Mr. Justice Stukes, we are not here concerned with the question of whether the maintenance of a funeral home in a strictly residential area may be enjoined as a nuisance, in the absence of a zoning ordinance, as was the issue in Fraser's case, 201 S.C. 88,21 S.E.2d 577, I cannot refrain from taking advantage of the opportunity to state, most deferentially, and again for myself only, that, in my opinion, the proper rule to apply in such cases is that which seems to me to be supported by a majority of the modern, or more recent, decisions of the Courts of last resort of the several states, as well as by eminent textwriters, commentators and annotators, viz.: (1) An undertaking establishment is not a nuisanceper se. The business of preparing our sacred dead for decent interment is not only lawful, but it is an indispensable and holy duty. (2) It may become a nuisance, however (a) from the manner in which it is conducted, or (b) because of the place at which it is maintained; "and it is very generally held to be such when it intrudes itself into a strictly residential district." Tureman v. Ketterlin, 304 Mo., 221,263 S.W., 202, 204, 43 A.L.R., 11, and cases there cited; Cooley of Torts, 4th Ed. (1932), Vol. 3, p. 180, where it is said: "By what appears to be the weight of modern authority, however, it is held that the location of such a business in a residential district is sufficiently objectionable to make it a nuisance;" 87 A.L.R., 1062, where the commentator states: "The greater weight of recent authorities is to the effect that the establishment and operation of an undertaking business in a purely residential section under circumstances which would cause a depressing feeling to the families in the immediate neighborhood and a constant reminder of death appreciably impairing their happiness or weakening their powers to resist disease, and depreciating the value of their property, constitutes a nuisance;" A.L. R.'s Digest of decisions subsequent to the annotation in Volume 87 of that publication; Kundinger et al. v. Bagnascoet al., 1941, 298 Mich., 15, 298 N.W., 386, et seq.; and cases cited in the concurring opinion of Acting Associate Justice Oxner in Fraser's case, supra.

Surely, in view of the modern medical theory concerning the art of healing, "it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person. Cheerful surroundings are conductive to recovery for one suffering from disease, and cheerful surroundings are conductive to the maintenance of vigorous health in the normal person. Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance. * * * all of these are conducive to depression of the normal person; each of these is a constant reminder of mortality. These constant reminders, this depression of mind, deprive the home of that comfort and repose to which its owner is entitled." Saier v. Joy, 198 Mich., 295 299, 164 N.W., 507, 508, L.R.A., 1918-A, 825.

The judgment below should be affirmed.