Brunton v. Roberts

• Decision Date: 13 October 1936
• Parties: BRUNTON et al. v. ROBERTS et al.
• Court: Kentucky Court of Appeals

97 S.W.2d 413

265 Ky. 569

BRUNTON et al. v. ROBERTS et al.

Court of Appeals of Kentucky

October 13, 1936

Appeal from Circuit Court, Meade County.

Action by George E. Roberts and others against Thomas Brunton and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

M. T Whitworth and John D. Hardin, both of Brandenburg, for appellants.

Henry D. Moorman and A. Murray Beard, both of Hardinsburg, for appellees.

STANLEY Commissioner.

The case involves the removal of two bodies from a cemetery lot the portion of which so occupied being claimed by adverse possession by the family of the deceased. The judgment orders the removal by the defendants, and in case they fail, it is to be done by the sheriff.

Buck Grove Baptist Church of Meade county established a cemetery adjacent to the house of worship in 1873. The plot was laid off in 36-foot squares, each containing four lots 18 feet square. Between the blocks 4-foot aisles or lanes were established. When a lot was sold a record was made on the church minutes and the name of the purchaser was indorsed on the original plat of the cemetery. No deed or other instrument was executed. Members of the Roberts family early procured a block; the northwest corner lot, designated as No 29, being acquired by George Roberts. Afterward the southwest corner of the adjacent block, designated as lot No. 30, was purchased by John Brunton. These lots were separated by a 4-foot aisle. A similar intersecting aisle bounded both lots on the west. It appears that these and other lots in the cemetery were originally laid out by wood stakes, but the evidence is conflicting as to whether or not these, or any other markers, were there in 1915. The cemetery generally had been permitted to grow up in weeds and grasses so as to obliterate many of the marks separating the lots and aisles. The graves and monuments were not in alignment or located with exact regularity.

When Mrs. Mollie Bell Brunton died in 1915 her brother located the place for her grave at the request of her husband, John Brunton. It was at a point, he testified, which Mr. Brunton had previously shown him to be within the boundary of his lot. This was about 5 feet from the grave of Mrs. Roberts, who had been buried in 1889. When John Brunton died in 1926 he was buried next to his wife. During the subsequent years these two graves and another in the center of the lot, and the intervening space, were cared for as being the Brunton lot. Perhaps better attention was given this than the average lot in the cemetery. According to Dr. Roberts, brother of George Roberts, in 1929 he discovered that Mrs. Brunton's grave was on his lot, but there is some contradictory proof that at that time Dr. Roberts thought his line did not embrace it. At any rate, in 1932 or 1933, when a committee or association was clearing up the cemetery, it was definitely disclosed that Mrs. Brunton had been buried wholly within the Roberts' lot and Mr. Brunton partly within it and partly in the aisle. Ultimately this suit was brought by members of the Roberts family and the Buck Grove Cemetery Association against members of the Brunton family to require the removal of the bodies. The defense was a plea of adverse possession and laches. The affirmative response was that both families had been in possession of that portion of the ground during the years, and as to laches, that the defendants had not learned of the true situation until the year 1929.

Ordinarily, the purchaser of a lot in a cemetery acquires only an easement or license to make interments therein exclusive of others. This right of sepulture is a property right, subject to reasonable rules and regulations governing the cemetery, and, of course, to be controlled by the state in the exercise of its police powers. When that right is violated, the owner is as certainly entitled to all the remedies which the law affords as if he owned a fee simple. Of lesser degree, yet substantial, is the property which the owner of the burial lot has in the avenues and driveways. It is the right to the free and unobstructed use in order to have access to his lot. This property descends to the lineal descendants of the owner unaffected by any devise, and the right of possession, unless voluntarily relinquished, continues as long as the graves are marked and distinguishable and the cemetery continues to be used. Accordingly, a lot owner's remedy is commensurate with his rights. Equity will enjoin an unwarrantable disturbance or interference with the burial ground or the graves therein. It will, as well, protect the lot from invasion by a trespasser, so that the removal of bodies wrongfully buried therein may be commanded. Dickens v. Cave Hill Cemetery Co., 93 Ky. 385, 20 S.W. 282, 14 Ky.Law Rep. 347; Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 652, 15 Ky.Law Rep. 337, 21 L.R.A. 96; Hertle v. Riddell, 127 Ky. 623, 106 S.W. 282, 32 Ky.Law Rep. 477, 15 L.R.A. (N.S.) 796, 128 Am.St.Rep. 364; 11 C.J. 60, 61, 5 R.C.L. 2.5; Sherrard v. Henry, 88 W.Va. 315, 106 S.E. 705, 21 A.L.R. 645; Sacred Heart of Jesus Polish National Catholic Church v. Soklowski, 159 Minn. 331, 199 N.W. 81, 33 A.L.R. 1427.

It is generally accepted that the foregoing right or title may be acquired by prescription, and it cannot be defeated even by the record owner of the soil. Conversely, title may be lost by entry and continuous adverse possession by another according to the statutory and other legal requirements. The possession must be under color of title, although the courts are not quite in accord as to what must be the nature or character of use in order to constitute possession, such as the sufficiency of the mere presence of the body without care or improvement of the plot of ground. Likewise, there is some difference as to whether it is confined to the space occupied by a body, or covered by graves, or the entire plot. Sherrard v. Henry, supra; 2 C.J. 71; 2 C.J.S., Adverse Possession, p. 548. We held in Hook...