Kelly v. Tiner , 91 S.C. 41 ( 1912 )

March 20, 1912. The opinion of the Court was delivered by This is a suit for permanent injunction. His Honor, Judge Shipp, sustained the demurrer to the complaint interposed by the defendants, and for a proper understanding of the case it will be necessary that the complaint, demurrer and order of Judge Shipp and the exceptions be reported with the case. He allowed an amendment to the complaint on motion of plaintiffs. The exceptions allege error in his decision. He based his order sustaining the demurrer on the ground, "the complaint did not state facts sufficient to constitute a cause of action, because it appears upon the face of the complaint that there is no allegation of peculiar and special damages sustained by the plaintiffs which would entitle them to injunctive relief." Did the complaint state a cause of action before the amendment and afterwards? We think so. The plaintiffs allege that they are grandsons and heirs at law of Jacob Kelly, and they allege that Jacob Kelly, during his lifetime, set apart and dedicated for the use of the public, two acres of land as a graveyard for the burial of the dead, and that it has been used as such for eighty or ninety years, and during all that time known as the "Kelly Cemetery," and during that time parties having dead buried there have kept up the graves by cleaning off the same and by fencing the same. That the right to use this property as a graveyard has never been questioned for over fifty years. That the plaintiffs, parents, grandparents, great-grandparents, and other kindred, are buried there, and each of the plaintiffs have children buried there, and expect to be buried there themselves, and their descendants expect to be buried there. That the defendant is trespassing upon and destroying the wire, shrubbery, trees, etc., and making it unfit for the purpose it was set apart and used for, and intends to continue his depredations until the graveyard is made a cotton patch.

We think the plaintiffs allege sufficiently peculiar and special damages to entitle them to injunction. They allege they have kindred buried there, children, parents and other ancestors. The allegations show they are interested in the graveyard as a whole and particularly in the plat where their dead lie. I do not know of anything that, would disturb and arouse the feelings of a properly constituted person more than the intentional trespass and violation of the graves of their dead. It shocks and outrages the feelings, and arouses the indignation of every right minded person in a christian country, that the resting place of the dead should be interfered with, and the place set apart for this purpose converted into arable land, plowed over and cultivated and wiped out and obliterated as a cemetery. I not only think when a graveyard is set apart for the use of the public that those who have kindred buried there can maintain a suit for any unlawful interferences and trespass; but I think any one who has friends buried there can interfere and allege peculiar and special damages. These plaintiffs complain on behalf of themselves and on the behalf of the public in general, who have dead buried there. Where it is impracticable to bring all the parties before the Court, by reason of numbers, one or more can complain on behalf of themselves and such others as may come in.

Judge Shipp based his decision on the principles laid down in Steamboat Co. v. Railroad Co., 46 S.C. 327,24 S.E. 337; 33 L.R.A. 541; Threatt v. Mining Co., 49 S.C. 131,26 S.E. 970; Baltzeger v. Railway Co., 54 S.C. 242,32 S.E. 358, and other cases affirming that principle. An examination of these authorities will show that where the public generally sustains injury, that the party complaining must show some special or peculiar damage to himself. In the case at bar the plaintiffs show this. They complain that their dead buried in a graveyard, set apart for that purpose for over eighty years, are being disturbed and their rights invaded by an unlawful attempt on the part of the defendant to take possession of the land occupied by their dead, and to tear down and eradicate all evidence of their resting place, and to plant the land in crops. Not only to disturb their dead, but the dead of others buried in the same graveyard. The very thought of the unlawful intermeddling with the resting place of the dead is abhorent to the feelings of anyone, and this, in my opinion, is sufficient to show special and peculiar damages to the plaintiffs. The law and christianity devolves upon persons the duty to put away their dead, and give them the right to protect the resting place of their dead from the wanton and wilful depredations of strangers. "If one has been permitted to bury his dead in a cemetery by the express or implied consent of those in proper control of it, he acquires such possession in the spot of ground in which the bodies are buried, as will entitle him to maintain an action of trespass ``quare clausum fregit' against the owners of the fee or strangers, who without his consent, negligently or wantonly disturb it." Davidson v. Reed, 53 American Reports 613. In the same case we find, "One who has dedicated land to the public for burial purposes, the dedication having been accepted, may be prohibited from defacing or meddling with the graves thereon, at the suit of anyone having relatives or friends buried there." In the case ofDavidson v. Reed, 56 American Reports 32, we find, "that the public accepted and used the land for the purpose for which it was designated by the owner is also beyond dispute. It has been suggested that the bill cannot be maintained in the name of the two complainants. The complainants were residents of the neighborhood; they had friends buried in the burying ground, and were thus interested in preserving, for themselves and the public, the burying ground as it had been established, and we are of the opinion that they had the right to sue in behalf of themselves and others having a like interest. The bill was brought, and, in our judgment, properly, for the protection of the rights of the people in that particular locality, and we perceive no reason why it may not be maintained in the names of a part for the benefit of all, as well as if all directly interested had joined in the bill."

In the case at bar the plaintiffs have a general interest as citizens of the community in which the cemetery is located, and have a special and peculiar interest because their parents, children and grandparents are buried there. We think the Circuit Judge was clearly in error.

The other point involved here is decided in Ex parteMcColl, 68 S.C. 489.

The judgment of the Circuit Court is reversed.