Mosier v. Jones

1 Ohio Law. Abs. 721, 1923 Ohio Misc. LEXIS 1612

• Court: Ohio Court of Appeals
• Decided: July 14, 1923
• Docket: No. 1064
• Status: Published

Opinion

FERNED1NG, J.

Epitomized Opinion

Action by nearby residents to enjoin the locating and maintaining of an undertaker’s establishment at the northeast corner of E. Broad street and Monroe avenue, Coluumbus. The petition set out an ordinance prohibiting an undertaker’s establishment in a residential district, but as the ordinance was repealed during the pendency of this case, it was not considered, except as to the question of costs It is not disputed that the proposed undertaking establishment was to be located in a high-class residential district, and the property was formerly used for residence purposes. Jones testified that he intended to make improvements to allevitae the discomfort of residents in the neighborhood. In dissolving the injunction against the maintenance of the undertaking business and dismissing the petition, the Court of Appeals held:

Attorneys — Bennett, Westfall & Bennett, Williams, Sinks & Williams and O. H. Hosier, all of Columbus, for Hosier et al; C.-J. Pretzmann, Columbus, Vorys, Sater & Pease, Columbus, Baker, plostettler & Sidlo, Cleveland, Burkhardt, Heald & Pickrel, Dayton, and Dinsmore, Shohl & Sawyer, Cincinnati, for Jones.

1. The maintenance of an undertaking establishment in a residential district is not a nuisance per se. This conclusion was reached by the Supreme Court both from the finding of facts, as .well as the evidence, in Koembler v. Pennwell, 75 OS. 278. See also 99 OS. 406.

2. The proposed alterations to alleviate the discomfort of neighbors are hereby made an obligation on Jones and may be included in the journal entry.