Kincaid's Appeal , 1871 Pa. LEXIS 52 ( 1870 )

The opinion of the court was delivered, January 3d.1871, by

Sharswood, J.

— This is an appeal from a decree awarding a preliminary injunction. The motion in the court below was upon a bill filed and sworn to, but without any injunction affidavit or affidavits. This is a practice which ought not to be countenanced. The defendant, however, did not take any objection on this account, but put in an answer under oath. Neither bill nor answer is as full as it ought to be; but we may gather from them enough to enable us to decide this appeal.

It appears that in 1884 “ The Methodist Episcopal Church in the City of Pittsburg” purchased a piece of ground for the purpose of a grave-yard, and that it was so dedicated and used. The church was afterwards divided into three separate stations or congregations, and the trustees of the original society conveyed the said lot in 1849 to them as tenants in common. The interest of one of the said congregations has since been assigned and transferred to the Centenary Board of the Pittsburg Conference of the Methodist Episcopal Church. It is not a matter of contention,’ but that subject to whatever rights individuals may have acquired in the graves and burial-lots, the title, legal or equitable, is in these parties. It also appears that in process of time the ground ceased to be used any longer for interments, and many of the bodies had been removed to other cemeteries. The city was growing and becoming closely built around it, and as no income was derived from it by the churches, there were no means of keeping it in proper order, and from its neglected condition it was rapidly becoming a nuisance to the neighborhood. In this state of affairs the legislature passed an Act April 13th 1867, Pamph. L. 1234, entitled “ An Act for the vacation and sale of the Methodist burial-ground in the city of Pittsburg, and for removing the bodies therefrom.” After reciting the facts, it provided “ that from and after the passage of this act it shall be unlawful to make interments in the said burial-ground; and after the removal of the bodies therein, as provided for in this act, the same shall be vacated for burial purposes.” It proceeds to declare that the commissioners to be named in the act should be authorized to purchase one or more suitable lots in some of the cemeteries in the vicinity of the city, and remove thereto all the remaining bodies in the said burial-ground, and have them decently interred; and they shall also remove and set up over the new graves the monuments and tombstones now standing in the said burial-ground over the present graves, with a proviso for the publication of an advertisement of their intention to do so. After the removal, the commissioners are to sell the ground in such manner as they shall deem most advisable and most likely to realize the most money; and the proceeds are to be distributed by them, 1st. To pay the expenses of removal, including the cost of the new lots. 2d. To compensate the lot-holders; and 3d. The balance, after defraying other necessary or incidental expenses, to be divided between the congregations entitled and the Centenary Board. The commissioners are authorized to compromise and settle with the lot-owners, either before or after the removal of the bodies, and if they cannot agree they may apply to the Court of Quarter Sessions, who shall • appoint three disinterested persons as arbitrators to determino how much, if anything, shall be paid to each lot-owner, and their award, when approved by said court, shall be final and conclusive. The defendants are the commissioners appointed by this act and a supplement thereto, passed February 14th 1868, Pamph. L. 167. The congregations interested ultimately, have not been made parties, as it would seem that they ought to have been, but we may assume that the Act of Assembly was passed at their instance. The allegations of the bill, that the defendants are carrying out the act in an improper manner, and not in accordance with its directions, are denied in the answers. So that the only question is, whether as to these ■ complainants the act is constitutional so far as it directs the removal of the bodies and of the tombstones and monuments to some other cemeteries. The learned president of the District Court was of the opinion that this was an unconstitutional infringement upon their rights, and therefore awarded the injunction.

The plaintiffs may be divided into two classes; holders of certificates and holders of interment permits. The certificate set out in the bill states that the subscriber, in consideration of $10 paid by him, is entitled to “ two burying lots in the burying-ground of said church;” “to have and to hold the said lots for the use and purpose and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church.” This deed of trust is not produced or annexed to the bill. We have printed in the appendix of the paper-book of the appellants the deed of Keating and wife to the Methodist Episcopal Church of the city of Pittsburg; but in this deed no trustees are named. It is a direct grant to the church; expresses no trust — not even the object for which the ground was conveyed. The appellants admit, however, in their paper-book that the deed to the trustees contains no conditions or regulations on the subject. We will assume this to be so. We cannot, however, consider the certificate as evidence of a grant to the lot-holders of any interest or title in the soil; and if this is so of course not the interment permits. Had it been so intended it would surely have contained words of inheritance. Taking it for a grant it is only for the life of the lot-holder, and at the very time it would be needed for his own interment his title would cease. Without any accompanying conditions and regulations it is a very loose paper. We hold that it was the grant of a mere license or privilege to make interments in the lots described, exclusively of others, as long as the ground should remain “the burying-ground of the church.” Whenever by lawful authority it should cease to he a burying-ground his right and property would cease. The lot-holder purchased a license— nothing more — irrevocable as long as the place continued a burying-ground — but giving no title to the soil. Whether it was an incorporeal hereditament descendible to him, or passed on his death to his personal representatives, it is unnecessary to decide. While the license continued he could, perhaps, bring trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers. But if in the course of time it should become nec.essary to vacate the ground as a burying-ground, all that he could claim, either in law or equity, would be that he should have due notice and the opportunity afforded to him of removing the bodies and monuments to some other place of his own selection, or that on his failing to do so such removal should be made by others. He accepted the grant or license subject to this necessary condition. We are not without decisions in our sister states in support of this view. In Windt v. The German Reformed Church, 4 Sandf. Ch. Rep. 471, it was held that the sepulture of friends and relations in a cemetery belonging to a religious society, confers no right or title upon the survivors, and they cannot prevent the sale of such cemetery by the corporation and the removal of the interred remains, when such removal is in other respects conducted according to law; and in that case the Vice-Chancellor remarked: “ the only protection afforded to the remains of the dead interred in a cemetery of this description, is by the public laws prohibiting their removal, except on the prescribed terms, and in a still stronger public opinion. Probably these furnish all the protection which is consistent with the exigencies of a large city, the population of which increases with marvellous rapidity, and whose wants leave but little room for the remains of the dead in the dense and crowded haunts and thoroughfares of the living.” He adds, speaking of such a grant or permit: “ It confers the privilege of sepulture for such body in the mode used and permitted by the corporation, and the right to have the same remain undisturbed so long as the cemetery shall continue to be used as such, and so long also, if its use continues, as such remains shall require for entire decomposition ; and also the right in case the cemetery shall be sold for secular purposes to have such remains removed and properly deposited in a new place of sepulture.” In Richards v. The North-West Protestant Dutch Church, 82 Barb. 42, it was held that the sale of a church vault gave the right of interment in that particular plat of ground so long as that and the contiguous ground continued to be occupied as a church-yard. Every person purchases such privilege with the full knowledge and implied understanding that change of circumstances may in time require a change of location. He cannot, therefore, have an injunction to prevent the disposition of the soil and the removal of the remains. See also Price v. The Methodist Episcopal Church, 4 Ham. 515. The grant of a pew in a church edifice creates a kind of right which appears to he in all respects analogous to that of a burial lot in a grave-yard. In regard to pews there have been many more determinations than in regard to burial lots, and the voice of the authorities is uniform and clear. The grant of a pew in a church edifice in perpetuity does not give to the pew-owner an absolute right of property as in a grant of land in fee. He has a limited usufructuary right only. He must be presumed, from the very nature of the subject-matter, to have taken the grant under, all the conditions and limitations incident to such property. If the edifice becomes useless by dilapidation, or is destroyed by fire or any other casualty, the right of the pewowner is gone. So if from age, decay or other injury the house has to be rebuilt in the same place, or from some necessary cause the location must be changed, the old edifice sold and a- new one erected on another spot, the pewholder has no claim either in law or equity. It is said, indeed, in some of the cases that if the congregation or parish, from mere motives of convenience or ornament, resolve to pull down the old and erect a new church edifice, in such case the pew-owner is entitled to compensation; that is, the parish or church from -whom the grant is derived must not wantonly deprive their grantee of the benefit of the license or privilege without making to him compensation. But where it is an act of necessity, required by the condition of the building or other imperative exigency, h.e has no claim whatever to compensation : Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; Wentworth v. First Parish in Canton, 3 Id. 344; Howard v. First Parish in North Bridgewater, 7 Id. 137; Fassett v. First Parish in Boylstown, 19 Id. 361; Freligh v. Platt, 5 Cow. 494; Voorhees v. Presbyterian Church of Amsterdam, 8 Barb. 135; S. c. 17 Id. 103; Reformed Church in Saugerties, 16 Id. 237; Cooper v. The First Presbyterian Church of Sandy Hill, 32 Id. 222; Brick Presbyterian Church, 3 Edwards Ch. 133,; Baptist Church in Hartford v. Witherell, 3 Paige 296; Kellogg v. Dickinson, 18 Vt. 266; Penia v. Grange, 33 Vt. 101. I do not pretend that this citation exhausts the cases on the subject, but they are the leading ones. This court has followed this train'of decisions in Church v. Wells’s Ex’rs, 12 Harris 249, in which Lowrie, J., said, “ a pew right is not of such a character as to prevent an absolute sale of the church edifice, either by contract or judicial process; by itself it was never known as a subject of taxation; if the edifice burns down the pew right is gone; it does not prevent the society from tearing down and rebuilding the edifice or from altering the whole interior arrangement of it; it does not authorize the pewholder to change and decorate the pew according to his’ fancy, or to cut it down and carry it away; and it gives him no right to the ground on which it stands. It is, therefore, a right that is entirely peculiar.”

Such being the restricted and qualified character of the rights of the plaintiffs, whether as holders of certificates or permits, it remains to inquire whether the ground in question had by lawful authority ceased to be a burying-ground; and the removal of the remains of the bodies, with the monuments, to another place or places in like manner authorized. The disinterment of a dead body is a misdemeanor, and indictable at common law as an offence “highly indecent and contra bonos mores:” King v. Lynn, 2 Term Rep. 733; Commonwealth v. Cooley, 10 Pick. 37; Kanavanis’ Case, 1 Greenl. 226. We cannot doubt that it is competent for the legislature to authorize or to delegate that power to the municipalities. It is a police power necessary to the public health and comfort. As they can authorize the removal of any other thing which they may deem a nuisance, by a summary proceeding, without a jury trial, so they can authorize and direct the removal of dead bodies from any ground, and the consequent vacation of it as a burying-ground. No one can doubt the power of the legislature to prohibit all future interments within the limits of towns or cities. In ancient times, in Greece and Rome, such was the universal rule. It was one, of the laws of the twelve tables “ hominem mortuum in urbe ne sepelite neve vicinitate.” It is much to be regretted that it was not adopted as our policy at an early period. This, is no invasion of any right of property. Every right, from an absolute ownership down to a mere easement, is purchased and held subject to the restriction that it shall be so exercised as not to injure others. Though at the time it may be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise, by the residence of many people in its vicinity, and that it must yield to laws for the suppression of nuisances. If conditions or covenants, appropriating land to some particular use, could prevent the legislature from afterwards declaring that use unlawful, legislative powers necessary to the comfort and preservation of populous communities might be frittered away into perfect insignificance. If a man were tojourchase a building upon condition that it should only be used for the storing of gunpowder — though perfectly lawful at the time — if the legislature made it unlawful, his property would become valueless; yet it would hardly be pretended that he would have any right to compensation as for property taken for public use. So the holder of a burial lot, in which as yet ho interments have been made, who has purchased and paid for it under the restriction that it shall be used for no other purpose, by the passage of a law making such interments unlawful, loses all use of the lot. Yet he has no claim for compensation, for it cannot be said in any sense that his property has been taken for public use. The state has the unquestionable right to regulate the Use of all property for the public good. Therefore a statute authorizing the harbor master of New York to regulate and station vessels in the East and North rivers was held to extend to the wharves of private owners, and that it was not unconstitutional as interfering with private property: Vanderbilt v. Adams, 7 Cowen 349. Where the corporation of the city of New York had conveyed to a religious society a piece of ground for burial purposes, with a covenant for quiet enjoyment, and afterwards, in pursuance of authority vested in them, prohibited all future interments, it was held that the covenant no longer existed. When one covenants not to do a thing which it is lawful for him to do, and an act of the legislature comes afterwards and compels him to do it, the act repeals the covenant: Brick Presbyterian Church v. The Mayor, &c., of New York, 5 Cowen 578. It has, accordingly, been always maintained, that such laws and ordinances, as applicable to existing burial-grounds, are constitutional and valid: Coates v. The Mayor, &c., of New York, 7 Cowen 585; City Council of Charlestown v. The Wentworth First Baptist Church, 4 Strob. Law Rep. 306. If upon the principles thus stated, the constitutionality of this exercise of legislative power is unquestionable, ought it to. be doubted for a moment that they can proceed a step further and declare a buryihg-ground to be vacated as such, and authorize and direct the removal of the bodies therefrom ? As to those recently interred, the necessity with a view to public health and comfort of removing them, is as apparent as the prohibition of future interments. With those which have become entirely decomposed, leaving only the bones, that necessity may .not be so urgent, but of that the legislature are the exclusive judges. They may direct the removal in such manner and upon such terms as to them may seem wisest and best — having due regard to that feeling of reverence and attachment which all men ^naturally have to the spot where the ashes of their departed an"cestors and friends repose, and the strong desire that, if possible, they should not be disturbed. Even these feelings, however, must yield to the higher consideration of the public good.

We have come, then, to the conclusion that the Act of Assembly of April 13th 1867 was constitutional and valid, and that the preliminary injunction below'ought not to have been awarded.

Decree reversed, and record remitted for further proceedings.