Pulsifer v. Douglass , 53 L.R.A. 238 ( 1901 )

Wiswell, C. J.

Action of trespass quare clausum for an alleged unlawful entry upon the cemetery lot of the plaintiff and the removal therefrom of the body of the plaintiff’s sister which had been buried therein about a month prior to the disinterment. The body was that of Mrs. Sarah A. Webb, and we think that it must be inferred from the case that the burial in the plaintiff’s lot was with the consent of the husband of the deceased. The disinterment and removal of the body of Mrs. Webb were done by the defendant at the request of her husband. The case comes to the law court upon report.

It is not only the duty of a husband to provide a suitable place for the burial of the body of his deceased wife, but he unquestionably has the paramount right to determine upon the place of her burial. Durell v. Hayward, 9 Gray, 248. But when that duty has been performed, and the body has been buried in the lot of another with the consent, both of the husband and of the owner of the lot, the husband does not have the right, without the consent of the lot owner, to enter thereon and remove the body. A dead body, after burial, becomes a part of the ground to which it has been committed, and an action of trespass may be maintained by , the owner of the lot, in possession, against one who disturbs the grave and removes the body, so long, at least, as the cemetery continues to be used as a place of burial. Meagher v. Driscoll, 99 Mass. 281; Weld v. Walker, 130 Mass. 422; Bessemer Land & Imp. Co. v. Jenkins, 111 Alabama, 135 (56 Am. St. Rep. 26).

But under some circumstances a court of equity, which, in this country, where there are no ecclesiastical courts, has jurisdiction of controversies relative to the place of burial of a dead body, may permit a husband to remove the body of his deceased wife from the lot of land of another, as where the burial was not with the intention or understanding that it should be her final resting place. Weld v. Walker, supra. See also a discussion of the law upon this subject in Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227.

The defendant is, therefore, liable for a technical trespass, at least, notwithstanding he was acting at the request of the husband. The plaintiff claims large damages, both actual and punitive, including damages for her distress of mind, upon the ground that the defendant’s acts were wanton and malicious and performed without due regard to the proprieties of the occasion.

We do not think that the evidence substantiates the plaintiff’s contention in this respect, but, upon the contrary, we are of opinion, that in removing the body to another place of burial the defendant, and those employed by him, proceeded with due propriety and decency, and as the body was removed for and at the request of the husband, that the plaintiff should be confined to a recovery of actual damages measured by the injuries done to her lot, which we assess at twenty dollars.

Judgment for plaintiff.

Damages assessed at $¡20.