Although a cemetery is not a nuisance per se, it may become one by reason of its location, or manner of use, depending upon conditions in the locality. 87 A.L.R. 761. The majority opinion states that the proposed cemetery "will not be conducted as a commercial enterprise," and that it will have "the characteristics and aspect of a country churchyard." It does not mention, however, that what is proposed is a cemetery of more than 5000 grave sites, covering an area of 10.74 acres of ground. Nor is it emphasized by the majority that lots are to be sold not only to members of St. Martin's Church, but to members of churches in the surrounding communities as well, and to any and all other persons who may apply, subject only to approval of the Vestry of St. Martin's Church, at a price of $800 per lot. As clearly as in the case of invasion of a strictly residential community by an undertaking establishment, the operation and maintenance of such a cemetery, in the very heart of a neighborhood conceded by the majority to be "exclusively residential in character," will inevitably produce an atmosphere detrimental to the use and enjoyment of the neighboring residential properties. Such result goes beyond mere mental disturbance and should not be permitted, over the protests of those who would be materially injured thereby, in the absence of a strong showing of public necessity. See 3 Cooley on Torts (4th ed.) 180, section 435; Bragg et al. v.Ives, 149 Va. 482, 140 S.E. 656; Rick v. Cramp, 357 Pa. 83,87-88, 53 A.2d 84. *Page 512
The mere issuance by the zoning authorities of a permit to use the property for cemetery purposes is not sufficient to deter a court of equity from declaring that the proposed use will constitute a nuisance. "Acts of municipal officers under zoning legislation permitting the use of property for what is or may be a nuisance, do not oust the jurisdiction of equity to determine whether a nuisance in fact exists and should be restrained": Perrin's Appeal, 305 Pa. 42, 51, 156 A. 305. See also White v. Old York Road Country Club, 322 Pa. 147, 152,185 A. 316.
The decree of the court below should be reversed, with directions to reinstate the bill and grant the relief prayed for.