Stevens v. Manchester , 63 N.H. 390 ( 1885 )

The statute authorizing cities and towns to take land, when it cannot be obtained by purchase at a reasonable price, for the establishment and enlargement of public cemeteries, provides that no cemetery shall be laid out within twenty rods of any dwelling-house without consent of the owner. G. L., c. 49, s. 2. The cemetery may be established by the purchase of land for that purpose, as well as by taking it by the exercise of the right of eminent domain. The mischief sought to be restrained by the limitation in the statute to a distance of twenty rods from a dwelling-house affects all public cemeteries alike, whether established by voluntary or compulsory purchase of the land. It is the public right of purchasing or taking land for a public purpose that is restrained by the limitation in the statute, and not the exercise of the private right of purchasing land for a private cemetery, or any other private purpose. Carter v. Moulton, 58 N.H. 64.

Demurrer overruled.

BINGHAM, JJ., did not sit: the others concurred.