Went v. Methodist Protestant Church

The power of the Legislature, to prohibit interments in or to-remove the dead from cemeteries which in the advance of urban population may be detrimental to the public health or in danger of becoming so, is not at this day a debatable question. (Windt v. German Ref. Church, 4 Sandf. Ch. 471 ; Richards v. The N. W. Prot. Dutch Church, 32 Barb. 42 ; Brick Church v. The Mayor, 5 Cow. 538 ; Coates v. The Mayor, 1 id. 585 ; Sohier v. Trinity Church, 109 Mass. 1 ; Woodlawn Cemetery v. Everett, 118 id. 354; Kincaid’s Appeal, 66 Penn. St. 411 ; Craig v. First Presb. Church, 88 id. 42; Tiedeman on Police Power, § 122d; Dillon on Mun. Corp. §§ 306, 301.)

In .Kincaid’s Appeal the Supreme Court of Pennsylvania said that no one can doubt the power of the Legislature to prohibit all further interments within the limits of towns and cities, and as the constitutionality of that exercise of legislative power was unquestioned, it was not doubted that the Legislature could proceed a step further and declare thpt burying grounds should be vacated as such and direct the removal of the bodies therefrom. The plaintiff does not seriously question the existence of this legislative power, but it is apparent that in this* instance, unless the defendants can sell the

The constitutional provision in relation to making compensation for property taken for a public use does not seem to me to have any application to the question. The abatement of the nuisance arising from the burial of great numbers of dead bodies in a thickly populated district is the question which concerns the public and the one over which the Legislature has power, and that is satisfied by a removal.of the bodies. No property is taken for public use, unless it can be said to be taken for the purpose of acquiring new burying grounds and to pay the expense of removal. But to take it for that purpose would be in the nature of a tax or assessment, to impose or enforce which the Legislature should provide regular proceedings, in which the lot owners should have opportunely to be heard. The Legislature, in directing a sale of the land question, has assumed that the church corporation had the title. If that is not the fact, then the power of sale cannot be executed. The reported cases are not harmonious upon the question as to the character of the title which a lot owner has to a burial plot in a cemetery controlled and governed by a corporation.

■ The courts have differed as to whether it is an easement analogous to that of a pew owner in a church, or whether it is an ownership in the soil.

Mr. Washburn, in his work on Easements (p. 515), states the rule as follows: “Right of burial in churchyards and pew rights in churches, although acquired by deed of a particular lot or pew, are only easements in land belonging to the society which governs the

To the same effect are: Kincaid’s Appeal ( 66 Penn. St. 411 -123); Craig v. First Presb. Ch. (88 id. 42); Sohier v. Trinity Church ( 109 Mass. 1 -21); Price v. Meth. Church ( 4 Ohio, 515 ); Richards v. N. W. Dutch Ch. ( 32 Barb. 42 ); Buffalo City Cem. v. City of Buffalo ( 46 N. Y. 503 ).

To the contrary are: In re Brick Presb. Ch. ( 3 Edw. Ch. 155 ); Windt v. German Rfd. Ch. ( 4 Sandf. Ch. 471 ).

In the case of the Brick Church the deed to the lot owner was in form similar to that held by the plaintiff. The vice-chancellor, after a review' of many authorities and distinguishing the case from that of a pew holder or owner of a tomb, held that the deed gave to the lot owner title to the land and not a mere easement or privilege of burial.

In the case of the German Rfd. Ch. the plaintiff had no deed, and an injunction to restrain the sale of the land -was refused, but Yice-Cliancellor SaNDKOeb expressed the opinion that the result would have been otherwise if the plaintiff had held a deed for his plot.

These cases cannot, I think, be reconciled with the case of the N. W. Prot. Dutch Church ( 32 Barb. 42 ). There the plaintiff held title to his lot by deed — which granted to him, “his heirs and .assigns forever,” and stipulated that the vault should “ never be dug up, disturbed or destroyed.” An injunction restraining a sale by the church was denied.

In Kincaid’s case the evidence of title vras a certificate under seal of the clmrch that the lot owner was entitled to two lots of a certain size and number to hold for the uses and purposes mentioned in the deed of trust to the church.

In the case of Trinity Church of Boston the tombs were constracted under the church edifice, but the plaintiffs held title by deed.

The question of title cannot be determined solely by the terms of the deed given to the lot owner. Reference must of course be had to the act of the Legislature creating the corporation from which title is derived and to the limitations upon its power and to the

All individual rights of property, whether they rest on absolute conveyances or mere license, are subject to laws of this character, and the principle known as the police power, upon which the legislative authority to enact such laws rests, has of late years been considered by the courts in numerous cases — many of which are on the briefs of counsel.

Assuming, therefore, as we must, that the use of the cemetery as a burial place may be interdicted, and the bodies of the dead removed, it cannot, I think, be seriously claimed that it was within the contemplation of parties to a deed for a burial plot, that when that contingency should arise the individual owner should hold, title to his lot for general uses the same as he would hold other property. Individual ownership under such circumstances, would only create confusion of title and' eventually leave a large tract of land without the care or supervision of a responsible owner. The lots would be small and of no use for building purposes, inaccessible in many instances from the city streets, and where the original grantee had died, probably owned by many persons having widely separated residences and in many instances unknown.

A construction should not, therefore, be put upon deeds of this character that would produce such a result, unless the rules of law applicable to such instruments forbid any other conclusion. By the Laws of 1853 and 1878, relating to the incorporation of Union Cemetery, it was enacted that it should be a rural cemetery within.

It may sue for trespass committed on the lots conveyed to individuals, and it may enter upon the lots at any time to improve or embellish them or to erect buildings, fences, walks, etc. The lots are exempt from taxation as property of the association. The provisions of section 11, to which our attention is called, that a lot in which an interment has been made is forever thereafter inalienable, is not a limitation upon the power of the Legislature to order a sale of the property.

The case of The Deansville Cemetery Association ( 66 N. Y. 569 ), cited in the opinion of the Special Term and relied upon by the respondent, does not decide anything contrary to the views here expressed. That was an application to condemn lands for cemetery purposes, and the court decided that the act of the Legislature purporting to grant that power was unconstitutional on the ground that the use for which the land was to be taken was private and not public. Nothing in the opinion can be construed as holding that the individual owner held title to the soil of his burial lot. It was said that their “ rights ” descended to their heirs as private property and that the substantial right of enjoyment of the property was vested in individual lot owners. But this language is as applicable to an easement as to an ownership of the soil.

The question of title was, however, presented in the case of The Buffalo Cemetery v. City of Buffalo ( 46 N. Y. 503 ).

In that case the association, which was organized under the Rural Cemetery Act, sought to have an assessment set aside on the ground, that it should have been made against the individual lot owner. This claim was overruled and the assessment sustained, Judge Folg-jer saying that “ the effect of such conveyance under the statute * * *

This case, in my judgment, is conclusive as to the plaintiff’s title. It is true that there was no conveyance before the court in that case, and that the plaintiff’s deed is sufficient to convey a freehold; but, construing the latter conveyance in the light of the statute authorizing the creation of rural cemetery associations, as interpreted by the ■ Court of Appeals, and the evident purpose of the parties to the contract, it cannot, I think, bo truly claimed that the plaintiff purchased more than an easement for burial purposes, or that the grant was intended to convey a fee. The intent of the contract is carried out and the purpose of the parties thereto effectuated by holding that the legal effect of the instrument was to grant an easement in the land only.

To this construction of the plaintiff’s deed the case of The Brick Church ( 3 Edw. Ch. 155 ) does not apply. It is settled by a lóng line of authorities that a pew owner has no claim for compensation when the church is taken down from necessity arising from the condition of the building or other imperative exigency.

It cannot be said, in any sense, that in such case his property is taken for public use. (Kincaid's Appeal, supra, and cases cited in opinion of Judge Siiarswood.)

In this case the plaintiff’s rights are fully protected by the direction to the defendants to remove the bodies to a new cemetery, and to purchase other land to be used for cemetery purposes. The rights of burial which he loses in the old ground will be fully restored to him in the new, and in legal contemplation he suffers no damages.

My conclusion is that the act of 1893 was a valid exercise of legislative power, and the action of defendants thereunder cannot be restrained.

DyjcMAN and CullbN, JJ., concurred.

Judgment reversed and complaint dismissed, with costs.