Browne v. Park Cemetery

• Decision Date: 01 May 1917
• Citation: 101 A. 34,78 N.H. 387
• Parties: BROWNE v. PARK CEMETERY.
• Court: New Hampshire Supreme Court

101 A. 34

78 N.H. 387

BROWNE

v. PARK CEMETERY.

Supreme Court of New Hampshire. Belknap.

May 1, 1917.

Transferred from Superior Court, Belknap County; Kivel, Judge.

Proceeding for the laying out of land for the Park Cemetery by the selectmen of the town of Tilton, wherein Belle P. Browne objected. From the laying out, Browne appealed. On transfer without a ruling. Case discharged.

The defendant is a voluntary corporation organized July 8, 1851, for the purposes of providing, holding, and keeping in repair suitable grounds and other conveniences for the burial of the dead, and claims the right to take the plaintiff's land under the following statute passed March 6, 1913:

"All the acts and proceedings of an association called and known as Park Cemetery located in the town of Tilton (formerly in Sanbornton) be, and the same are hereby ratified and made legal, and the said Park Cemetery as now organized shall have ail the rights and powers, and be subject to all the liabilities which towns by statute possess concerning cemeteries, by and under sections 4 and 6 of chapter 40 of the Public Statutes, and shall be called and known as Park Cemetery." Laws 1913, c. 311, § 1.

Stephen S. Jewett, of Laconia, for plaintiff. Charles C. Rogers, of Tilton, Robert Jackson, of Concord, and Branch & Branch, of Manchester, for defendant.

PARSONS, C. J. By section 6, c. 40, P. S., towns are authorized to take land in invitum for public use. The use of land for the establishment and maintenance of a cemetery' for the burial of the dead may be a public use. Rockingham Light & Power Co. v. Hobbs, 72 N. H. 531, 533, 58 Atl. 46, (56 L R. A. 581; Crowell v. Londonderry, 63 N. H. 42; Evergreen Cemetery Association v. New Haven, 43 Conn. 234, 21 Am. Rep. 643.

"The burial or other safe disposition of the dead is a necessity essential to the preservation of the health of the living. The private use of land lor this purpose by a private corporation may be of public convenience and necessity, as that term is sometimes used, although not strictly a public use justifying condemnation of land for that purpose. * * * But where land is appropriated * * * by a town or other municipal corporation, or by the owners of the land, being a voluntary association or private corporation, and the land so appropriated is open, under reasonable regulations, to the use of the public for the burial of the dead, it may become a public burial ground and its use a public use, and the Legislature may lawfully condemn land for that public use." Starr Burying Ground Ass'n v. Association, 77 Conn. 83, 58 Atl. 467.

The plaintiff bases her objection to the constitutionality of the statute invoked by the defendant upon the elementary principle that...