ing the body, to carry off the water as the ice melted. This is now dispensed with, so that there is no connection whatsoever between the ice and the corpse. These boxes, which are so used to preserve the body, are taken, after the burial, to the residence of the defendant, through his office and store to the rear thereof, and, in this narrow space, by the side of the hydrant, are often washed; and, if not washed there, are washed further back in the yard. They have been allowed to remain there for an hour, and sometimes longer- occasionally all night. The complainant insists that he has several times noticed offensive odors from those boxes, which have greatly distressed him and given him alarm. Indeed, it may be said that there is no doubt but that the complainant has been frequently exercised in his mind on account of the presence of these boxes, which have been receptacles of the dead. Nor is there any doubt but that he has observed offensive odors, but whether from these boxes or not, is not so clear to my mind. There were odors arising from that locality, but the defendant insists that they came from a drain which he found to be choked up on two occasions; and that, after the drain had been opened and cleansed, there were no longer any odors. The complainant insists that these odors were of the character that he says they were, because flies were attracted there in great numbers, among which was what is known as the blow fly, which is supposed, according to the testimony, more likely to be attracted to places where there is animal decomposition than the ordinary fly. . . .

It is quite clear to my mind that this, like many other occupations, may be conducted as to be a nuisance. For example, a grocer might allow his vegetables to decay in such quantities and in such localities upon his premises as to do infinite harm to his neighbors, and subject him to the penalties of the law, or to the restraint of a court of equity. The same may be said of the vendor of meats; so negligent might he be as to scatter disease and death to multitudes. But because these things are possible, or may occasionally happen, it is not pretended for a moment that it is unlawful to carry on the grocery business, or to vend meats in the populous parts of our cities. It seems to me that the same reasoning may be applied, with great certainty, to the business of undertaking. It may be carried on so negligently, with such indifferent regard to the rights and feelings of others, as to be not only an offence to the tender sensibilities of the intelligent and refined, but to be a direct menace to the health, and open violation of the civil rights of all residing in the neighborhood. . . .

But it has not been shown that disease of any kind has ever been communicated by any act or omission of the defendant. It is not in evidence that the fatal spore has ever been allowed to remain in any of the boxes which the defendant and his employees have handled as children do their toys. Nor does it anywhere appear that any special risk has been presented in the management of this business. Therefore, as to the first question, I must conclude that the complainant cannot prevail.

In the second place, it is urged that the business of an undertaker is a nuisance per se. Is this proposition maintainable? Must the undertaker retire from the inhabited parts of our villages, towns, and cities? Is an occupation which is absolutely essential to the welfare of society to be condemned by the courts, to be classified with nuisances, and to be expelled from localities where all other innocent and innoxious trades may be carried on? In other words, is this business so detestable in itself as unreasonably to interfere with the civil rights or property rights of those who dwell within ordinary limits, and who can and do, without effort, see and hear what is being done? The inquiry is not whether it is obnoxious to this or that individual or not; but whether or not it is of such a character as to be obnoxious to mankind generally, similarly situated. There are certain obscene or offensive sights, certain poisonous or destructive gases or odors, certain disturbing sounds or noises, which affect most persons alike. Can the business of an undertaker be classed with any of these? Is the business of an undertaker of this class? Before the Court can condemn a trade or calling, it must appear that it cannot be carried on without working injury or hurt to another; and, as I have said, that injury or hurt must be such as would affect all reasonable persons alike, similarly situated. The law does not contemplate rules for the protection of every individual wish, or desire, or taste. It is not within the judicial scheme to make things pleasant or agreeable for all the citizens of the State.

But to proceed with the case before me. Let us ascertain from what standpoint, or under what circumstances, the complainant regards this employment a nuisance per se. Mr. Westcott is one of the most highly respected citizens. He is about seventy-two years old. As to the subject matter in hand, and everything akin to it, he is most sensitive or tender. It is conceded that he has an extraordinary horror or repugnance to contemplating anything pertaining to death or to the dead. Such emotions or feelings so control him that he has not attended a half dozen funerals during his long life. As he advances in years, this sentiment becomes more and more intolerable. It is urged, and with great reason, that these facts being so, Mr. Westcott's judgment is not only overcome by his imagination, but that innumerable evils are created thereby for his soul to feed upon, which he charges in this case to the defendant. Plainly, the circumstances are special, and most unsafe to found any general rule of law upon. . .

My attention has been called to the case of Penna. R. R. Co. v. Angel, 14 Stew. Eq. 316. The principle there laid down is of great value in every such case. The defendant was engaged in a lawful business, but so used its tracks in making up its trains and distributing the cars in front of the complainant's dwelling that, by reason of stenches, noises, smoke, steam, and the dirt thereby occasioned, the comfort of the complainant's home was seriously impaired. The Court below allowed an injunction against such use of the road. But the Court did not pretend

to hold that the company must abandon the use of its tracks altogether. It was only decided that the company had no right to allow its engines or its cars to remain in the presence of, or near by, the house of the complainants, making hideous noises, emitting smoke and steam and unwholesome odors, to the great discomfort of the complainant in his home. The judgment of the Court simply looked to the proper exercise of the lawful rights of the defendant, and in the lawful exercise of those rights, what inconvenience or annoyance the complainants might suffer, they must submit to. Engines in passing might whistle or emit smoke, steam, and dirt, cattle might bellow, sheep bleat and hogs squeal; but to that extent the complainants must yield to the general demand. To this extent the Court was sustained on appeal. I can find nothing in that case to lead me to say that the business of an undertaker is a nuisance per se.

My attention has also been directed to Cleveland v. Citizens' Gas Light Co., 5 C. E. Gr. 201, in support of complainant's views. In that case the court held:

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Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained. . . . To live comfortably is the chief and most reasonable object of men in acquiring property as the means of attaining it; and any interference with our neighbor in the comfortable enjoyment of life is a wrong which the law will redress. The only question is what amounts to that discomfort from which the law will protect."

The learned Chancellor then made this important observation:

"The discomfort must be physical, not such as depends on taste or imagination. But whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance; and it is not the less so because there may be persons whose habits and occupations have brought them to endure the same annoyances without discomfort."

For a strikingly similar definition, see Walter v. Selfe, 15 Jur. 416, 4 Eng. L. & Eq. 15. In this case, then, we have the broad, yet perfectly perceptible or tangible ground or principle announced, that the injury must be physical, as distinguished from one purely imaginative; it must be something that produces real discomfort or annoyance through the medium of the senses, not from delicacy of taste or a refined fancy. This is very comprehensive; indeed, I cannot conceive of a more liberal or broad statement of the law; yet I apprehend it is a true delineation of the law.

How, therefore, shall I apply this rule? I must find that physical discomfort has been produced, or will be; but, in so doing, I must not forget the influence of the imagination or of a morbid or abnormal taste on the mind and body. What has been disclosed by the proofs? These facts: Mr. Westcott and the defendant have lived side by side, in these same houses, for about eleven years. During all this time, the

latter had carried on this business of burying the dead in about the same open and unpretentious manner that he now does. There is no evidence that Mr. Westcott or any other person has ever been afflicted by reason of the defendant's occupation. Indeed, nothing has been attempted in that direction. Yet it is admitted that this trade has been and is carried on by the defendant in the midst of the most populous part of the city of Camden. And what, to my mind, is of very great consequence, in considering whether this trade affects the body of Mr. Westcott through what is known as the bodily senses, or through his imagination or taste, is the fact that not another person has been produced who has been affected as he has been. . . . And although the business of undertaking, caring for, and burying the dead has been conducted in about the same manner from the earliest times (that is, in an open and public manner, in the town and city, as well as in the country), and so continues to be, where the most refined and cultivated abide, as well as where the unpretentious do, yet from no class has any one been brought to testify to any bodily or mental injury or suffering, because an undertaker was carrying on his vocation in his neighborhood.

Hence, in my judgment, before a trade or business can be declared to be a nuisance per se, it must be made to appear that it necessarily works injury, discomfort, or annoyance to the property of persons of citizens generally, who may be so circumstanced as to come within its influence. It is not enough that only one person, and that one the complainant, alleges discomfort; and certainly his case is greatly weakened when he admits that so sensitive is he on the subject that in seventy-two years he has not attended a half-dozen funerals.

The result of my inquiries are, that, while the defendant has no right to conduct his business so as to endanger or threaten the health of the complainant, or to make his home uncomfortable, either by filling the air with noxious vapors, or the germs or seeds of disease, the evidence does not show that he has done either, and that the business of an undertaker is not a nuisance per se.

The bill should be dismissed, with costs.

BILL for an injunction by John McMillan and others against Louis Kuehnle and another. Preliminary injunction granted.

Charles E. Sheppard and Edwin G. O. Bleakly, for complainants. George A. Bourgeois, for defendants.

WALKER, V. C. The bill is filed by John McMillan and John H. Goldsmith on behalf of themselves and other residents of Atlantic City; among them being those whose affidavits are annexed to the bill. Those

making affidavits besides the two complainants are Mrs. Ellen Goldsmith, wife of one of the complainants, Robert Ingram and Harriet A. Ingram, his wife, Mrs. Frances Young, and Mrs. Mary Reynolds. The object sought by the bill is to restrain the defendants from holding forth baseball games at Inlet Park, Atlantic City, on Sundays, because of an alleged nuisance attendant thereon by way of noise and disorderly conduct which disturbs the peace and quiet of the Sabbath and interferes with the rest to which the complainants are of right entitled to enjoy on that day. The case stands or falls on the question of nuisance or no nuisance, as the Court of Chancery has no power to enforce, by injunction, the Sunday laws, so called. That jurisdiction belongs to another tribunal.

The complainant Mr. McMillan, who is a clergyman, swears that baseball games had been carried on at Inlet Baseball Park, Atlantic City, for some five or six Sundays before the making of his affidavit which was on August 25th ult. (1909); that his residence is about two squares from the park, and that large crowds attend the games; and that in going to and returning therefrom make loud noises, and sounds which are an annoyance to himself and the neighborhood, and a disturbance of the peace and quiet of the neighborbood, but he says nothing about sounds emanating from the grounds. He also says that quite a large number of the boys in his Sunday school absent themselves, and attend the games on Sabbath afternoons. With this last feature of his complaint the Court has nothing to do.

The complainant Goldsmith swears that he lives about a block and a half, or 600 feet, from the park, and that on Sunday afternoons crowds of people in carriages, in automobiles, and on foot pass by, to, and from the games, making loud noises, and that during the progress of the games there is frequently heard very loud cheering and shouting, yelling, and screaming and stamping of feet on the stands, all of which is very plainly heard at his residence and is greatly annoying and interferes with the comfort of his house for himself and his family, and destroys the peace and quiet of the neighborhood during the time.

[Five other affidavits, to the same effect, were made.]

The proofs on the part of the defendants, who admittedly control and operate the Inlet Baseball Park, show that lands near or adjoining the park are used as a terminal of the trolley line (which extends from Longport to the Inlet) where its terminal building and waiting-room and also a hotel and restaurant, around which is a two-story pavilion and another hotel are situate; also, nearby, is a pier from which approximately 100 sailing yachts of various sizes make daily or hourly excursions or trips down Absecon Inlet and out upon the Atlantic Ocean, which yachts daily carry great numbers of people, extending into the thousands, on sailing trips, great numbers of people taking those trips on Sunday afternoons; that great numbers of people visit the hotels, or one of them, especially on Sundays, and enjoy the refreshments that