Hancock v. McAvoy , 151 Pa. 460 ( 1892 )

Opinion by

Mr. Justice Sterrett,

As well stated by appellant in the opening sentence of his argument, “ The question first presented for decision is, whether the interest conveyed, under the original deed of Tilford to Lisle, is such an interest in land as will support an action of ejectment.”

The thing conveyed by the deed referred to, as the same is described therein, is “ the exclusive and entire right of interment or sepulture in all and every of those two hundred burial lots in the Philadelphia Cemetery, situate,” etc., “ marked in the map or plan of said cemetery with the numbers 5, 9,” etc.'; “ together' with all and singular the ways, avenues, passages, rights, liberties, privileges, improvements, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining and the reversions and remainders thereof; to have and to hold the same with the appurtenances unto the said John M. Lisle, his heirs and assigns to and for the only proper use and behoof the said John M. Lisle, his heirs and assigns forever, for the uses and purposes of sepulture only, and to and for no other use, intent or purpose whatsoever, subject to all the rules, regulations, conditions and restrictions contained and set forth in the articles of association made and adopted or which may hereafter be made and adopted by the corporators or managers of said cemetery for the government of lot owners or visitors to the cemetery, and the burial of the dead, and in and by any by-laws made and adopted or which may hereafter be made and adopted in pursuance of the said articles of association or of the act of assembly incorporating said company.”

It thus appears by the deed, that all the vendee acquired thereunder was “ the right of interment or sepulture,” in the lots described therein and declared to be held “ for the uses and purposes of sepulture only and to and for no' other use, intent or purpose whatsoever.” The right, thus sharply defined and limited, is also subject to all the rules, regulations, conditions and restrictions contained and set forth in the articles of association, made and adopted, or which might thereafter be adopted by the corporators or managers of the incorporated cemetery company.

The language of the deed evidently contemplates possession and general control of the cemetery grounds, etc., by the company. The grantee in the deed acquired no such interest in the lots, nor such right of possession, as will support an action of ejectment. That action will not lie for a mere license, an incorporeal hereditament, nor for a mere right of way, nor an easement: 6 Am. & Eng. Enc. Law, 232; Adams on Ejectment, 16. As was said in Black v. Hepburne, 2 Yeates, 333 : “ Ejectment will only lie for things whereof possession may be delivered by the sheriff.” If a recovery in ejectment,— founded on a mere right or license such as that acquired by the grantee in the deed above referred to,—were permitted, how could the sheriff, under a writ of habere facias, put the plaintiff in possession, without interfering with the rights, •powers and duties of the cemetery corporation? In Kincaid’s Appeal, 66 Pa. 411, one of the plaintiffs held a paper certifying that he was “ entitled to two lots in the burying ground, .... to have and to hold the said lots for the use and purpose and subject to the conditions and regulations in the deed of trust to the trustees of said church.” It was held that this was not a grant of any interest in the soil; that it was the grant of a license or privilege to make interments in the lots described, exclusive of others, so long as the ground should remain the burying ground of the church; that while the license continued he could perhaps maintain trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers, etc.

That case was cited approvingly in Craig v. The Church, 88 Pa. 42, in which it was also held that the right of sepulture in the burying ground of a church is not an absolute right in the soil, but a mere license or privilege.

In Union Oil Co. v. Bliven Oil Co., 72 Pa. 173, the grant to the defendant was of the exclusive right and privilege of boring for oil, etc., upon a farm. Subsequently, by partition, the title became vested in another who conveyed to plaintiff. It was held that the grant was a mere incorporeal hereditament and consequently ejectment could not be maintained. Referring to the grant, which was of “ the exclusive right and privilege of boring for salt, oil or minerals,” upon the McClintock farm, Mr. Justice Sharswood says: “It was, therefore, as in Funk v. Ilaldeman, the grant of a mere incorporeal hereditament. Indeed, we do not understand this to have been controverted in the court below, nor has it been made a question in this court. It follows that the only remedy which the the plaintiffs had for the disturbance of their right was an action on the case. Ejectment they certainly could not have maintained.” Funk v. Ilaldeman, 53 Pa. 239, above cited, is substantially to the same effect.

It follows from what has been said, that the right of sepulture, etc., was not an interest in the land, such as will support an action of ejectment. It is therefore unnecessary to consider whether the court erred in directing a verdict for defendant, and in other respects, or not. If, on the case presented by the plaintiff, he had no right to recover in an action of ejectment, he was not injured by any of the alleged errors of which he complains.

Judgment affirmed.