Page:The Green Bag (1889–1914), Volume 14.pdf/638

 A Grave Problem. marked, graves cannot offend the senses 589 in neighbor's house. The neighbor alleged the new graveyard to be a nuisance for the rea son that its proximity rendered his residence uncomfortable and the enjoyment of his property disagreeable. The discomfort would seem to have been that the reminders of the shortness of life and the end of it made the pleasures the neighbor was getting out of it bitter-sweeter from his front door than from his rear windows. The court of last resort remarked that "there is no pretense that the plaintiff's physical health or his olfactories have in any degree been affected by any effluvia from the new graves." It would be manifestly er roneous and against the weight of the evi dence to say that the water in his well, which is closely covered about the pump and has never been cleaned out, tastes bad and smells bad on account of a few dry bones buried seventy feet distant therefrom. Assuming that there was no injury to the physical health or comfort of the neighbor the Court further asked, whether it can be a nuisance on account of its relative position with the neighbor's house, the cemetery inev itably meeting his view whenever he looked from the north window of his sitting-room or stepped from his door, and that thereby the comfortable enjoyment of his dwelling-house was interfered with. The answer was, " such discomfort is purely mental." Cemeteries are not necessarily even shocking to the senses of ordinary persons. Many are rendered attractive by whatever appropriate art and skill can suggest, while to others of morbid or excited fancy or imagination they become unpleasant and induce mental disquietude from association exaggerated by superstitious fears. All of which, in other words, means, that I may plant my graveyard where I please on my own premises, even though my neigh bors see what I do not — weird ghosts dis port themselves upon it. Or as a Court re-

a legal point of view. To become a nuisance the effect must be such as to interfere with ordinary physical existence, and the injury must be something more than fancy, delicacy or fastidiousness. In a North Carolina case, in speaking of the power of a Court of Equity to restrain a nuisance which is likely to produce irrepar able mischief, it was held that destruction of or an injury to the health of inhabitants of a city or town or of an individual and his family would be deemed a mischief of an ir reparable character, yet when equity is asked to apply this law to cemeteries it will have to be clearly proved that a place of sepulture is so situated that the burial of the dead there will endanger life or health, either by corrupt ing the surrounding atmosphere or the water of wells or springs, before the Court will grant injunction relief. There was such doubt in the mind of the Court whether the testimony proved the ex istence of a nuisance that the Court framed an issue to be sent to a jury to determine whether the maintenance of the burial-ground was in fact a nuisance. In an Indiana qase, where a city had pur chased land for cemetery purposes, adjoining a tract on which there was a valuable spring claimed to be fed by subterranean streams passing under the cemetery land, it was held that it is impossible to establish correlative rights in subterranean streams, the situation of which is conjectural and unknown, and that it was improper to grant an injunction restraining the use of the lands for cemetery purposes on the ground of such conjectural injury to the spring. One Court intimated soberly and without a suspicion of humor, that a cemetery is not to be classed with bone-boiling establish ments, which counsel asking for the injunc tion somewhat facetiously advanced as an