Carter v. Chotiner

CURTIS, J.

This is an action brought by plaintiffs to restrain and enjoin defendants Chotiner and Sher, partners under the fictitious name of “Paradise Cemetery,” from using for cemetery purposes a certain ten acres of land owned by them, on the ground that such use will be a nuisance, and cause irreparable injury and damages to the premises and health of plaintiffs. Such damage and injury, it is alleged, will be caused by reason of the pollution of the water in the wells used by plaintiffs for domestic and stock purposes. Plaintiffs are owners of property adjoining that of the cemetery. The cemetery is not within the

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limits of any municipality, but is within the Santa Fe Springs district in the county of Los Angeles, about twelve miles from the city of Los Angeles. After the cemetery had been in operation a few months, and a few burials had been made, plaintiffs brought this action and secured a temporary restraining order. After a rather lengthy trial before the court without a jury, during the course of which the trial judge visited the premises and personally observed the physical characteristics of the properties involved, the court dissolved the restraining order and denied the application of plaintiffs for an injunction to prohibit defendants from operating a cemetery at all, but did enjoin the defendants from interring any bodies within a strip forty feet wide encircling the cemetery grounds. Plaintiffs ■ appeal.

The complaint is a lengthy one, and in addition to pleading the facts in reference to danger from pollution of waters, it sets forth two ordinances of the county of Los Angeles (Nos. 927 and 956) by the terms of which it is provided that no cemetery may be established in any portion of Los Angeles County where any portion of the same “shall be located in any community where within a distance of one mile from said cemetery there are situated one hundred or more dwelling houses cor other buildings used in whole or in part for the'habitation of human beings ’ ’ without first obtaining a permit from the board of supervisors which permit shall only be granted after a public hearing. Violation of said ordinance is made a misdemeanor.

Respondents admitted, although burials had already been made in the cemetery, that up to the time of trial no such permit had been secured, although it appears that a permit has since been secured. The parties stipulated at the time of trial that within a radius of one mile from the cemetery there are 122 buildings used in whole or in part for the habitation of human beings. It might be here mentioned that based on the above figures there is an average of one building used for - the habitation of human beings for every sixteen acres within the circle provided for in the above ordinances.