Kuhlman v. City of Beloit

The opinion of the court was delivered by Harvey, J.: This is an action by a property owner to enjoin the city of Beloit from laying out and operating a cemetery. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed. Acting under the authority of chapter 117 of the Laws of 1925, the city of Beloit, a city of the second class, purchased land within the corporate limits to belaid out and used as a cemetery. The plaintiff owned a residence property across the street from the land so purchased by the city, and seeks to enjoin the laying out and using of the land so purchased by the city as a cemetery, on the ground that such use will constitute a private nuisance. A cemetery is not a nuisance per se, but may be so situated or be so conducted as to constitute a nuisance. (Bellevue Cemetery Co. v. McEvers, 168 Ala. 535; Barrett [646] v. Mt. Greenwood Cem. Ass’n, 159 Ill. 385; Sutton v. Findlay Cemetery Ass’n, 270 Ill. 11; Payne v. Town of Wayland, 131 Ia. 659; Nelson v. Swedish E. L. Cemetery Ass’n, Ill Minn. 149; Lowe v. Prospect Hill Cemetery Ass’n, 58 Neb. 94; Clark v. Lawrence, 59 N. C. 83; Clinton Cemetery Ass’n et al. v. McAttee, 27 Okla. 160; and cases collected in the note, 7 A. L. R. 767, and 26 A. L. R. 942.) We shall not attempt to set out the petition in full. We have carefully examined it in view of the authorities above mentioned. It is lengthy, but it contains no allegation of fact from which it necessarily or reasonably follows that the proposed city cemetery is, or will become, a private nuisance. It necessarily follows that the judgment of the court below is correct, and it is affirmed.