(dissenting). „ The appellants in this case having purchased certain real estate in a portion of the city of La Crosse where real estate for residence purposes was, from the natural course of events, depreciating rather than appreciating in value, are by the judgment herein prevented from using such real estate in the carrying on of a lawful and absolutely necessary business and on various grounds as stated in the sixth finding of fact quoted in the statement of facts above. That is because its presence decreased the market value of plaintiffs’ residence property and rendered that property less desirable as homes; because *31it created feelings of dread of contagious diseases, of discomfort and dissatisfaction; because of some instances of odors incident to the business; and because, being a constant reminder of death, it depresses the feelings of the respective families of the plaintiffs, especially the women and children and persons who are ill or of a nervous temperament, such depressed feelings thereby impairing the comfort and happiness of all members of the several families.
I think the effect of this decision is to carry the doctrine of the right of a court of equity to interfere with the lawful use by another of the latter’s property far beyond the heretofore generally accepted doctrine in that regard.
An undertaking establishment when conducted properly — and no question is here raised but that the defendants exercised proper, reasonable, and more than ordinary care in the conducting of the business — is not a nuisance per se even when such undertaking establishment is located in a residence section of a city. 20 Ruling Case Law, 455 ; 29 Cyc. 1183.
It is necessary, therefore, that there should be some particular situation presented which makes that which is not a nuisance per se a special or particular nuisance. That the lawful use of defendants’ property may lessen the selling value of plaintiffs’ property is not a sufficient basis upon which the right to an injunction of this kind can be predicated. Northfield v. Atlantic Co. 85 N. J. Eq. 47, 95 Atl. 745.
The effect which a claimed nuisance has upon the exceptional individual is not the accepted standard. Its effect upon the sensibilities of the great mass of mankind or average citizen is the standard. 2 Cooley, Torts (3d ed.) 1245; 29 Cyc. 1192. Yet in this case relief was granted upon the idea that the existence of this undertaking establishment did have a depressing effect upon those of nervous temperaments, evidently considering them as differentiated from persons of the normal or ordinary temperament.
*32The majority opinion cites seven cases as supporting the conclusion that the establishment and operation of an undertaking and embalming business in a residential district under such circumstances as here disclosed constitutes a nuisance. But two of them involve anything like the business here involved.
Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, 29 L. R. A. n. s. 49, involved the erection of a hospital for the treatment of cancer.
Cleveland v. Citizens G. L. Co. 20 N. J. Eq. 201, concerned the establishment of a gas works. ,
Barnes v. Hathorn, 54 Me. 124, concerned the maintaining of dead bodies in an overground family tomb adjacent to plaintiff’s residence.
Barth v. Christian P. H. Asso. 196 Mich. 642, 163 N. W. 62, held that the complaint there sufficiently alleged facts showing the right to interfere with the proposed erection of an insane asylum.
Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W. 713, upheld an injunction to prevent the deposit of refuse from a starch factory polluting a river to the injury of a lower riparian owner.
The only ones so cited involving an undertaking establishment are Densmore v. Evergreen Camp No. 147, W. O. W. 61 Wash. 230, 112 Pac. 255, where the building proposed to be used for - such purpose was but three or four feet from the plaintiff’s residence, and the evidence showed danger of infection and contagion; and Saier v. Joy, 198 Mich. 295, 164 N. W. 507, where the proposed establishment was within thirteen and one-half feet of residence property, and with a finding that noxious gases did reach the adjacent houses.
In the case at bar there is an open space of sixty-five feet on one side and seventy-five feet on the other between defendants’ place and the nearest residences, and no substantial showing of actual or threatened harm.
*33In my opinion the plaintiffs failed to show a reasonable basis for the judgment they have obtained. The situation here is substantially different than if such attempted exclusion had been based upon some reasonable, valid zoning ordinance, as illustrated by such cases as St. Paul v. Kessler, 146 Minn. 124, 178 N. W. 171, and Meagher v. Kessler, 147 Minn. 182, 179 N. W. 732, where all within prescribed limits are treated alike and where the limitations are by the public authorities and are known before a purchase is made.
In any event I think that no more should have been done than direct that any particular' features of defendants’ business or way of conducting it should have been prohibited rather than the business as an entirety. If the sign or night light or some other feature were too remindful of the depressing idea of the inevitable mortality which surrounds us from the cradle to the undertaking establishment and which the contemplative mind cannot escape having recalled to him by falling leaf, November wind, and the newspaper accounts of Sunday automobile accidents — all beyond remedy by injunction, — then such particular objectionable features might be eliminated or changed by injunction rather than the entire destruction of a going and legitimate business. Such milder form of cure was recognized in cases like Mackenzie v. Frank M. Pauli Co. 207 Mich. 456, 174 N. W. 161; Weaver v. Kuchler, 17 Okla. 189, 199, 87 Pac. 600.