(dissenting) — I respectfully dissent from the majority opinion. Howeyer, I desire to express my disapproval of it.
I. The case of Bevington v. Otte, 223 Iowa 509, 518, 273 N.W. 98, 102, should be, and in my opinion is, controlling in the case here reviewed. But the majority opinion states it is not. I believe it should not be distinguished.
The Bevington v. Otte case was decided by this court in 1937 and has not been questioned since that time. It was therein stated:
«# * * w,e see ri0 justification whatever for the defendants’ attempt to intrude a commercial enterprise into this purely residential neighborhood and subject its residents not only to a loss in the value of their respective properties, but also to the annoyances to the peace and enjoyment of their homes, and possible detriment to their health, which, must result if the defendants succeed in what they are attempting to do.”
However, this court inferentially overrules this last referred to case. It should do so positively for its holding amounts to a change of attitude on the part of this court. The majority opinion states that the distinction between the Bevington case and the present one is that in the former case the proposed funeral home was in a definite residence district while in the instant ease the proposed funeral home site, even though in a residential district, is near an area changing in part from residential to commercial. The facts commented upon and emphasized are that plaintiffs’ residence property is in a commercially zoned district. It does not give consideration to the fact that the proposed site is in a residential district. The majority opinion seems to find some solace and justification in the fact that the proposed funeral home is to be soundproofed. If the business to be carried on in the proposed building is not in its very nature a nuisance in the selected location why would it need to be made soundproof at all and that fact commented on in the majority opinion ? However, it cannot be denied that the site of the proposed funeral *861borne is in a definite residential district. In fact the majority-opinion cites with approval many cases which hold that a funeral home in a strictly residential district is a nuisance because of the very nature of the business. It even states and cites authorities for the following statement: “When it is sought to establish a funeral home in a purely residential district it is held by matiy decisions to be a nuisance.” This statement would give support to an affirming opinion.
It is tó be presumed that the writer of the opinion in the Bevington v. Otte case, Donegan, J., gave caréful consideration to its preparation. It is also to be presumed that the members of this court who joined in it were satisfied that it expressed what they thought was good law. The three members of the court who did not join in the opinion did not file or indicate a dissent. Yet the majority of the present court see fit to file what, amounts to an overruling opinion. The statement made by Mr. Justice Roberts in his dissenting opinion in Smith v. Allwright, 321 U. S. 649, 666, 670, 64 S. Ct. 757, 766, 768, 88 L. Ed. 987, 151 A. L. R. 1310, can be advisedly quoted here:
“This tendency, it seems to me, indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors. * * *
“It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.”
II. The citation of Iowa opinions by courts of other states gives an indication of their approval of the holdings of our court. It gives a merited recognition. The Bevington v. Otte case has been recognized as one of the leading cases on the subject matter here discussed. In the case of Brown v. Arbuckle, 1948, 88 Cal. App. 2d 258, 261, 198 P. 2d 550, 551, it *862is stated: “While some courts bold that an undertaking parlor or funeral home in a residential district is not a nuisance, the more recent trend of authority is clearly to the contrary. Bevington v. Otte, 1937, 223 Iowa 509, 273 N.W. 98.” This Iowa case is also cited with approval in Williams v. Montgomery, 1939, 184 Miss. 547, 549, 556, 186 So. 302, 304. If our opinions are to be cited by courts of other states it will be by reason of the belief that they will, with consistency, adhere to. a previous well-thought-out holding. They should be considered as established precedents.
III. The majority opinion cites several cases that support the holding that the granting of a permit does not authorize the establishment of a nuisance. Two Pennsylvania cases are cited which hold that the issuance of a permit is a proper matter , to consider but is not conclusive. This statement is made in the face of a previous comment in the opinion that “the permit did not and could not authorize a nuisance. A court of equity may properly determine the question of nuisance even though the permit was issued.” It would appear that there is an apparent variance in these two statements in the majority opinion. A further holding not cited by the majority to the effect that the erection and presence of a funeral home in a residential district could and should be enjoined even though a permit has been granted is found in Jones v. Chapel Hill, 273 App. Div. 510, 77 N. Y. S.2d 867, 870.
IY. It is not denied in the majority opinion that a funeral home in a strictly residential district is a nuisance because of the inherent nature of the business and although conducted in an approved manner without unpleasant odors or disease germs. Cases are cited in that opinion in support of such a statement. This holding is substantiated by innumerable authorities. In the annotations found in 87 A. L. B,. 1062 it is stated in the text as follows:
“The greater weight of recent authority is to the effect that the establishment and operation of an undertaking business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death, appreciably impair*863ing their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance.”
In 54 Am. Jur., Undertakers and Embalmers, section 7, pages 512, 513, a statement to the same effect is made.
It is also stated in 3 Cooley on Toils (1932), Fourth Ed., section 435, page 180, as follows:
“By what appears to be the weight of modern authority, however, it is held that the location of such a business in a residential district is sufficiently objectionable to make it a' nuisance. Thus it has been stated: The inherent nature of an undertaking establishment ‘is such that, if located in a residential district, it will ihevitably create an atmosphere detrimental to the use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such a district should not be permitted over the protests of those who would be materially injured thereby.’ ”
My research, as well as that of others, shows that the appellate courts in the majority of the states which have passed on the question have opinions wherein the facts and the law therein announced justify the statements previously quoted. They are: Alabama, Arkansas, Connecticut, Georgia, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, North Dakota, Oklahoma, South Carolina, Texas, Virginia, Washington, and Wisconsin.
The cases which support this reasoning by states are:
Higgins v. Bloch, 1925, 213 Ala. 209, 104 So. 429 (funeral home within residential district); Higgins & Courtney v. Bloch, 1930, 216 Ala. 153, 112 So. 739 (where even with encroachment of business court held injunction should issue); Laughlin, Wood & Co. v. Cooney, 1930, 220 Ala. 556, 126 So. 864; White v. Luquire Funeral Home, 1930, 221 Ala. 440, 129 So. 84 (injunction denied where there were other commercial enterprises within block or fronting on same street); Fentress v. Sicard, 1930, 181 Ark. 173, 25 S.W.2d 18; Brown v. Arbuckle, 1948, 88 Cal. *864App. 2d 258, 198 P.2d 550 (injunction granted where proposed funeral home would be in residence district; also held case of Dean v. Powell Undertaking Co., 1921, 55 Cal. App. 545, 203 P. 1015, not controlling as it was decided on pleadings and facts not applicable); Jack v. Torrant, 1950, 136 Conn. 414, 71 A.2d 705; McGowan v. May, 1938, 186 Ga. 79, 196 S.E. 705 (holding under Georgia practice that proposed undertaking business in residential district should be temporarily enjoined until case could be heard by jury, following Harris v. Sutton, 1929, 168 Ga. 565, 148 S.E. 403); Albright v. Crim, 1933, 97 Ind. App. 388, 185 N.E. 304 (funeral home in residential section enjoined); Reiser v. Osborn, 1944, 114 Ind. App. 617, 53 N.E.2d 545 (funeral-home in residential district enjoined even though four hundred feet from plaintiff’s residence and view partially obstructed); Leland v. Turner, 1924, 117 Kan. 294, 230 P. 1061; Hatcher v. Hitchcock, 1929, 129 Kan. 88, 281 P. 869; Weinmann v. Miles, 1931, 134 Kan. 107, 4 P.2d 437; Fink v. Smith, 1934, 140 Kan. 345, 36 P.2d 976; Osborn v. City of Shreveport, 1918, 143 La. 932, 79 So. 542, 3 A. L. R. 955, but see Moss v. Burke & Trotti, Inc., 1941, 198 La. 76, 3 So.2d 281; Lewis v. Baltimore, 1933, 164 Md. 146, 164 A. 220; Saier v. Joy, 1917, 198 Mich. 295, 164 N.W. 507, L. R. A. 1918A 825; Dillon v. Moran, 1926, 237 Mich. 130, 211 N.W. 67 (where it is shown that business outside of residential district had reached it injunction issued to enjoin establishment of funeral home); Kundinger v. Bagnasco, 1941, 298 Mich. 15, 298 N.W. 386; City of St. Paul v. Kessler, 1920, 146 Minn. 124, 178 N.W. 171; Meagher v. Kessler, 1920, 147 Minn. 182, 179 N.W. 732, but see O’Malley v. Macken, 1931, 182 Minn. 294, 234 N.W. 323 (where it is shown that there is a hotel within block and numerous rooming houses); Williams v. Montgomery, 1939, 184 Miss. 547, 186 So. 302; Davis v. Holmes, 1940, 189 Miss. 554, 198 So. 25 (where in area of eight city blocks are about seventy-five residences and two small grocery stores and small delicatessen shop, held essentially residential in character and funeral home enjoined); Smith v. Fairchild, 1942, 193 Miss. 536, 10 So.2d 172 (where it is held that location of ice plant, gas station and small grocery store within one thousand feet of undertaking establishment did not change residential character of district *865and prevent issuance of injunction); Tureman v. Ketterlin, 1924, 304 Mo. 221, 263 S.W. 202, 43 A. L. R. 1155 (funeral home enjoined even though district was in state of transition where shown essentially residential); Streett v. Marshall, 1927, 316 Mo. 698, 291 S.W. 494 (where, as shown in the instant ease, embalming would be done at another place of business and bodies brought to funeral home and it would constitute a mortuary chapel, held that such home in a residential district where reminder of death affected plaintiffs it should be enjoined) ; Clutter v. Blankenship, 1940, 346 Mo. 961, 144 S.W.2d 119; Beisel v. Crosby, 1920, 104 Neb. 643, 178 N.W. 272 (where although it is shown garage is within one and one-half blocks, two blocks of filling station and three blocks of a grocery, yet district essentially residential and use of property for funeral home enjoined); Arthur v. Virkler, 1932, 144 Misc. 483, 258 N. Y. Supp. 886; Sweet v. Campbell, 1940, 282 N. Y. 146, 25 N.E.2d 963; Meldahl v. Holberg, 1927, 55 N. D. 523, 214 N.W. 802; Jordan v. Nesmith, 1928, 132 Okla. 226, 269 P. 1096 (where it was held that use of funeral home in a residential district should be enjoined where it materially detracts from the comfort and happiness of those who dwell near by); Fraser v. Fred Parker Funeral Home, 1942, 201 S. C. 88, 21 S.E.2d 577 (held that where operation of funeral home caused depressed feeling, impaired happiness of near neighbors in residential area it should be enjoined. Dissenting opinion filed) ; Blackburn v. Bishop, Tex. Civ. App., 299 S.W. 264; Bragg v. Ives, 1927, 149 Va. 482, 140 S.E. 656; Densmore v. Evergreen Camp, 1910, 61 Wash. 230, 112 P. 255, 31 L. R. A., N.S., 608, Ann. Cas. 1912B 1206 (Linsler v. Booth Undertaking Co., 1922, 120 Wash. 177, 206 P. 976, distinguishes last cited ease); Goodrich v. Starrett, 1919, 108 Wash. 437, 184 P. 220; Haan v. Heath, 1931, 161 Wash. 128, 296 P. 816 (which distinguishes Rea v. Tacoma Mausoleum Assn., 1918, 103 Wash. 429, 174 P. 961, 1 A. L. R. 541); Cunningham v. Miller, 1922, 178 Wis. 22, 189 N.W. 531, 23 A. L. R. 739.
Courts of states which hold contrary to the holdings heretofore set forth are: Kentucky, New Jersey and Oregon. The cases from these states are: Pearson & Son v. Bonnie, 1925, 209 Ky. 307. 272 S.W. 375, 43 A. L. R. 1166; Westcott v. *866Middleton, 1887, 43 N. J. Eq. 478, 11 A. 490; Stoddard v. Snodgrass, 1925, 117 Or. 262, 241 P. 73, 43 A. L. R. 1160.
See also O’Malley v. Macken, 1931, 182 Minn. 294, 234 N.W. 323, where it is shown that in a block in question in Rochester there is a hotel and numerous boarding houses; also Koehler v. Pennewell, 1906, 75 Ohio St. 278, 79 N.E. 471 (where statutory definition and interpretation of word “morgue” was involved); O’Connor v. Ryan, 1942, Tex. Civ. App., 159 S.W.2d 531 (where business in area is shown injunction denied); Dutt v. Fales, 1930, 250 Mich. 579, 230 N.W. 948 (injunction denied where funeral home was in semi-industrial and residential district).
In spite of the predominately greater number of supporting authorities which hold under evidence similar to that presented in the instant case that a funeral home in an exclusive residential district should be enjoined, the majority opinion finds it possible to hold otherwise and to inferentially overrule our case of Bevington v. Otte, supra. This dissent therefore endeavors to express my disapproval of this disregard for precedents.
The majority opinion seeks to obtain support for its holding by citing our case of Kirk v. Mabis, 215 Iowa 769, 777, 246 N.W. 759, 762, 87 A. L. R. 1055. The majority opinion fails to state that the cited case was decided as it was because the funeral home was in a commercially zoned district. The concluding sentence of that opinion is: “The property upon which he is operating his business being designated as a commercial district, it is a proper and fit place for a funeral home, and the judgment and decree of the lower court was proper, and it is hereby — Affirmed.” In the present case the proposed funeral home is not in a commercial district but in a residential district.
Y. The evidence in the instant case discloses that the presence of the funeral home at the contemplated site would have a detrimental effect on the mental state of the neighbors. This conclusion is confirmed by substantiating testimony. The rule is that the determining factor must be whether or not the presence of a funeral home in a residential section would so affect a normal and ordinary person. Smith v. Fairchild, 193 Miss. 536, 10 So.2d 172-174; Jack v. Torrant, 136 Conn. 414, 71 A.2d 705, 710; Jones v. Chapel Hill, Inc., 273 App. Div. 510, *86777 N. Y. S.2d 867; Albright v. Crim, 97 Ind. App. 388, 185 N.E. 304. This has been adequately shown.
YI. The majority opinion, in its closing paragraph, comments on the fact that injunctions should be granted sparingly and only where it appears a nuisance will necessarily result from the thing sought to be enjoined. The evidence, in my opinion, definitely shows a nuisance will result. The majority opinion even admits that á funeral home is generally considered a nuisance in a residential district. I think the statement made in 39 Am. Jur., Nuisances, section 152, page 420, can be appropriately quoted in refuting the statements made in the majority opinion just referred to. It is as follows:
“And if it is shown that there is a reasonable and just ground to apprehend the establishment of a nuisance threatened by the defendant, which he has power to commit, and it is reasonably certain -that the health and comfort of those complaining will be disturbed by the threatened act, the writ will issue.”
- I would affirm the trial court and thus give support to our previously expressed holding. Thus we would give evidence of the stability of our opinions.