Mr. Associate Justice Stukes
delivered the majority Opinion of the Court, with Circuit Judge J. Henry Johnson, Acting Associate Justice, filing a Concurring Opinion and Mr. Associate Justice Baker filing a Dissenting Opinion. The Opinion of Mr. Associate Justice Stukes follows:
I most respectfully disagree with the opinion of Mr. Justice Baker, and I think that the decree of the Circuit Court should be affirmed for the sound reasons and conclusions it contains. It will be reported.
In the first place, the decision of the case at bar should not be affected in any important particular, if at all, by
Fraser v. Fred Parker Funeral
Home, 201 S. C., 88, 21 S. E. (2d), 577, or affect it. A zoning ordinance was not involved in the
Fraser
case; the municipality concerned had none. Mr. Justice Baker expressly recognized this vital difference in the cases at the outset of his opinion, but proceeded to disregard it and to reiterate the minority view in the
Fraser case.
In the second place, the law governing this case was largely settled in the last appeal of it,
Momeier v. John McAlister,
193 S. C., 422, 8 S. E. (2d), 737, 739, 129 A. L. R., 880, when it was held by this Court without dissent that the plaintiff need not prove a common-law nuisance (as was necessary in
Fraser v. Fred Parker Funeral Home,
supra) and that, quoting, “the violation of a valid zoning ordinance gives rise to one who has been, or will be, specially damaged by such violation, a cause of action in equity for an injunction against such violation * * Numerous cases from other jurisdictions were cited in support of the decision and others will be found in the annotation following report of it in 129 A. L. R., 880, and in the earlier annotation there mentioned, 54 A. L. R., 366.
The editor of the former accurately summarized our unanimous holding at page 886 of 129 A. L. R., as follows : “Thus in
Momeier v. John McAlister
[193 S. C., 422, 8 S. E. (2d), 737, 129 A. L. R.], 880, the Court has adopted the view that apart from’any consideration as to whether a private nuisance existed, the mere violation of a valid- zoning ordinance gives rise to a cause of action in equity for an injunction against such violation, at the instance of a property owner who has been or will be specially damaged, and that the trial of the issues is to proceed without a jury, as that of an ordinary suit in equity.”
The foregoing is, from examination of the authorities, undoubtedly the very decided majority rule.
It is apparent from the opinion of Mr. Justice Baker that he has confused the applicable rule, set out above, with cases in which zoning ordinances were not involved and they (those cases) were concerned with whether or not the funeral home, whose location was under attack, had been proven a nuisance, which is clearly a question not now presented. The A. L. R. annotations cited by him in Volumes 23, 43 and 87 all relate to the problem of whether a funeral home in a residential section is a nuisance, and not to the validity and enforcement of a zoning ordinance, our present problem. And the rather old (in view of the recent increasing wealth of authority on the subject) California case which he cites in conclusion of his discussion of what he regards as the applicable law,
Dean v. Powell Undertaking Co., 1921,
55 Cal. App., 545, 203 P., 1015, was not decided under a zoning ordinance and the Court expressly said so, implying a different result if there had been such an ordinance.
Surely it, and the language of it, are not pertinent here. Eater California cases in agreement with the views herein expressed are cited in 129 A. L. R., 885, and the holdings of some of them summarized on pages 886 and 887.
After the decision of the last appeal of this case, cited above, there were left for determination the issues of the
existence .of the zoning ordinance and whether defendants had violated it; its constitutionality; and whether plaintiff was specially damaged by such violation, if found, that is, whether he suffered injury not common to the general public.
Taking these issues in the order just stated, there is no doubt of the existence of the ordinance enacted in 1931 pursuant to the enabling statute of the State. And I think that likewise nothing need be added to the conclusion of the trial Judge that defendants’ operations at 150 Wentworth Street., whether it be called a funeral home or semi-funeral home, constitute a plain violation of the ordinance. It is not permitted there.
Such former doubts as were entertained concerning the constitutionality of zoning restrictions were set at rest by the decision of
Euclid, Ohio, v. Ambler Realty Co.,
272 U. S., 365, 47 S. Ct., 114, 71 L. Ed., 303, 54 A. L. R., 1016. Annotations following report of it and supplementary are found in 54 A. L. R., 130 (with references to three prior annotations), 86 A. L. R., 659, and 117 A. L. R., 1117. This opinion need not be prolonged by reviewing the reasons moving the Courts to uphold such regulations, necessitated by the complex conditions encountered in our present-day cities.
But appellants contend that the ordinance here involved contains an invalid delegation of legislative power to a Board of Adjustment who may upon appeal and hearing in effect waive compliance with the ordinance, etc., which renders it unconstitutional. Controlling analogous cases from this Court to the contrary were cited by the lower Court. To them may be added the authorities found in 86 A. L. R., 675 and 693, which relate particularly to such provisions in zoning statutes and ordinances.
No discrimination is found in the ordinance rendering it invalid. Permission for the continuance of nonconforming uses existing at the time of passage of
the regulations is common in such enactments. It would seem almost, if not quite, necessary. 86 A. L. R., 678. The record indicates that the establishments other than residences in the neighborhood come within such provision and their existence is, therefore, of no importance in the controversy. But if there should be other violations, they would not justify appellants’ failure to comply.
I have a very different view of the testimony, which I have carefully read more than once, relating to the factual issues, from that expressed by Mr. Justice Baker when he says that appellants’ testimony at least balanced that of the respondent. I fully concur in the findings of fact of the Circuit Judge; in fact I have no doubt that the preponderance of the evidence was with the respondent and that in addition to the interruptions suffered by him and the members of his family in the usual enjoyment of their home, due to the business activities of the appellants next door, there has been a material impairment in the money value of respondent’s property for residential purposes, and there is no testimony that it is of any value for any other purpose. And this depreciation in value is enough alone to constitute respondent a “specially damaged'plaintiff.”
A great many real estate brokers testified to substantial impairment of value of a residence closely adjacent to a funeral home.
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Mr. Associate Justice Stukes
delivered the majority Opinion of the Court, with Circuit Judge J. Henry Johnson, Acting Associate Justice, filing a Concurring Opinion and Mr. Associate Justice Baker filing a Dissenting Opinion. The Opinion of Mr. Associate Justice Stukes follows:
I most respectfully disagree with the opinion of Mr. Justice Baker, and I think that the decree of the Circuit Court should be affirmed for the sound reasons and conclusions it contains. It will be reported.
In the first place, the decision of the case at bar should not be affected in any important particular, if at all, by
Fraser v. Fred Parker Funeral
Home, 201 S. C., 88, 21 S. E. (2d), 577, or affect it. A zoning ordinance was not involved in the
Fraser
case; the municipality concerned had none. Mr. Justice Baker expressly recognized this vital difference in the cases at the outset of his opinion, but proceeded to disregard it and to reiterate the minority view in the
Fraser case.
In the second place, the law governing this case was largely settled in the last appeal of it,
Momeier v. John McAlister,
193 S. C., 422, 8 S. E. (2d), 737, 739, 129 A. L. R., 880, when it was held by this Court without dissent that the plaintiff need not prove a common-law nuisance (as was necessary in
Fraser v. Fred Parker Funeral Home,
supra) and that, quoting, “the violation of a valid zoning ordinance gives rise to one who has been, or will be, specially damaged by such violation, a cause of action in equity for an injunction against such violation * * Numerous cases from other jurisdictions were cited in support of the decision and others will be found in the annotation following report of it in 129 A. L. R., 880, and in the earlier annotation there mentioned, 54 A. L. R., 366.
The editor of the former accurately summarized our unanimous holding at page 886 of 129 A. L. R., as follows : “Thus in
Momeier v. John McAlister
[193 S. C., 422, 8 S. E. (2d), 737, 129 A. L. R.], 880, the Court has adopted the view that apart from’any consideration as to whether a private nuisance existed, the mere violation of a valid- zoning ordinance gives rise to a cause of action in equity for an injunction against such violation, at the instance of a property owner who has been or will be specially damaged, and that the trial of the issues is to proceed without a jury, as that of an ordinary suit in equity.”
The foregoing is, from examination of the authorities, undoubtedly the very decided majority rule.
It is apparent from the opinion of Mr. Justice Baker that he has confused the applicable rule, set out above, with cases in which zoning ordinances were not involved and they (those cases) were concerned with whether or not the funeral home, whose location was under attack, had been proven a nuisance, which is clearly a question not now presented. The A. L. R. annotations cited by him in Volumes 23, 43 and 87 all relate to the problem of whether a funeral home in a residential section is a nuisance, and not to the validity and enforcement of a zoning ordinance, our present problem. And the rather old (in view of the recent increasing wealth of authority on the subject) California case which he cites in conclusion of his discussion of what he regards as the applicable law,
Dean v. Powell Undertaking Co., 1921,
55 Cal. App., 545, 203 P., 1015, was not decided under a zoning ordinance and the Court expressly said so, implying a different result if there had been such an ordinance.
Surely it, and the language of it, are not pertinent here. Eater California cases in agreement with the views herein expressed are cited in 129 A. L. R., 885, and the holdings of some of them summarized on pages 886 and 887.
After the decision of the last appeal of this case, cited above, there were left for determination the issues of the
existence .of the zoning ordinance and whether defendants had violated it; its constitutionality; and whether plaintiff was specially damaged by such violation, if found, that is, whether he suffered injury not common to the general public.
Taking these issues in the order just stated, there is no doubt of the existence of the ordinance enacted in 1931 pursuant to the enabling statute of the State. And I think that likewise nothing need be added to the conclusion of the trial Judge that defendants’ operations at 150 Wentworth Street., whether it be called a funeral home or semi-funeral home, constitute a plain violation of the ordinance. It is not permitted there.
Such former doubts as were entertained concerning the constitutionality of zoning restrictions were set at rest by the decision of
Euclid, Ohio, v. Ambler Realty Co.,
272 U. S., 365, 47 S. Ct., 114, 71 L. Ed., 303, 54 A. L. R., 1016. Annotations following report of it and supplementary are found in 54 A. L. R., 130 (with references to three prior annotations), 86 A. L. R., 659, and 117 A. L. R., 1117. This opinion need not be prolonged by reviewing the reasons moving the Courts to uphold such regulations, necessitated by the complex conditions encountered in our present-day cities.
But appellants contend that the ordinance here involved contains an invalid delegation of legislative power to a Board of Adjustment who may upon appeal and hearing in effect waive compliance with the ordinance, etc., which renders it unconstitutional. Controlling analogous cases from this Court to the contrary were cited by the lower Court. To them may be added the authorities found in 86 A. L. R., 675 and 693, which relate particularly to such provisions in zoning statutes and ordinances.
No discrimination is found in the ordinance rendering it invalid. Permission for the continuance of nonconforming uses existing at the time of passage of
the regulations is common in such enactments. It would seem almost, if not quite, necessary. 86 A. L. R., 678. The record indicates that the establishments other than residences in the neighborhood come within such provision and their existence is, therefore, of no importance in the controversy. But if there should be other violations, they would not justify appellants’ failure to comply.
I have a very different view of the testimony, which I have carefully read more than once, relating to the factual issues, from that expressed by Mr. Justice Baker when he says that appellants’ testimony at least balanced that of the respondent. I fully concur in the findings of fact of the Circuit Judge; in fact I have no doubt that the preponderance of the evidence was with the respondent and that in addition to the interruptions suffered by him and the members of his family in the usual enjoyment of their home, due to the business activities of the appellants next door, there has been a material impairment in the money value of respondent’s property for residential purposes, and there is no testimony that it is of any value for any other purpose. And this depreciation in value is enough alone to constitute respondent a “specially damaged'plaintiff.”
A great many real estate brokers testified to substantial impairment of value of a residence closely adjacent to a funeral home. These were expert witnesses, qualified by their occupation and experience, whose evidence cannot properly be classified as “speculative and imaginary.” Such witnesses, in addition to those from Charleston, were in the real estate business in Florence, Orangeburg, Columbia, Anderson, Spartanburg and Greenville. Other witnesses, in other business and professions, testified to the same effect. There was conflicting testimony along this line by witnesses for the appellants but, as stated, I think their testimony was far outweighed by that of the respondent and his many witnesses. The great majority of the dealers in real esfate who testified v/ere in agreement that the value was impaired,
and practically all the witnesses were of the opinion that many people would not buy a home next door to a funeral home.
That respondent is not desirous of selling his home which he has occupied as such for over thirty years is of little or no probative value. He need uot, if the law as I see it is enforced. And there is not even a hint in the testimony that he could sell his long-established home for anything near the amount which he has invested in its cost and subsequent improvement over the years.
It is worth recording again that this case does not involve the declaration of appellants’ funeral home to be a nuisance. It involves merely the enforcement of a valid zoning restriction against business establishments generally in the residential section in question. Appellants might have erected a gasoline filling station on their corner and have been subject to the same litigation and injunction, granting that such business is prohibited there and a “specially damaged” plaintiff brought suit. Thus, this case is not a “funeral home” case as the term is ordinarily used.
Another consideration which seems to have influenced Mr. Justice.Baker and possibly should be answered is that the municipal authorities have apparently done nothing about the violation of the zoning ordinance in this case, but the latter is understandable and should be of no importance in the controversy. If their inaction were conclusive in such cases there would be no room for Courts of equity to act, yet there have been many successful suits such as this. See the several annotations cited. Every action for the abatement of a public nuisance might be met with the same contention, if valid, that the public authorities have not acted, which illustrates the impotence of the argument.
The questions presented by the exceptions have all been carefully considered and found without merit, and the latter should be overruled.
The foregoing, having been concurred in by a majority, has become the judgment of the Court.
The judgment appealed from is affirmed.
Mr. Associate Justice Fishburne and Circuit Judge J. Henry Johnson, Acting Associate Justice, concur.