Cave Hill Cemetery Co. v. Gosnell

• Decision Date: 19 December 1913
• Parties: CAVE HILL CEMETERY CO. v. GOSNELL.
• Court: Kentucky Court of Appeals

161 S.W. 980

156 Ky. 599

CAVE HILL CEMETERY CO. v. GOSNELL.

Court of Appeals of Kentucky.

December 19, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by G. W. Gosnell against the Cave Hill Cemetery Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Randolph H. Blain, of Louisville, for appellant.

William Furlong, of Louisville, for appellee Gosnell.

J. W S. Clements and Pendleton Beckley, both of Louisville, for appellee City.

HOBSON C.J.

George W. Gosnell received an apportionment warrant from the city of Louisville against the property of the Cave Hill Cemetery Company for paying with brick a portion of the carriage way of Payne street. The amount of the warrant was $1,115.49. He brought this suit against the cemetery company to subject the abutting land to its payment. The cemetery company answered in substance that it was a quasi public corporation without stockholders, empowered to conduct a cemetery, not held for private or corporate profit; that all of its lands and property were held and used under perpetual trust for cemetery purposes; that a part of the property sought to be subjected was occupied by the United States National Cemetery; that the enforcement of the lien would be a violation of the general statutes of the state and the acts of Congress prohibiting the violation of graveyards; that by an act of March 9, 1854 (Loc. & Priv. Acts 1853-54, c. 890) it was provided that the corporation might acquire by gift devise, or purchase not exceeding 300 acres of land, and that all lands acquired by it should be perpetually held and used for the purposes of a rural cemetery; that by an amendment to this act it was authorized to sell to purchasers burial lots, and issue to them certificates vesting in them the right to use the lots as a burial place for the dead, but not to be subject to execution or in an manner liable for the debts of the purchaser; that all the lands in the cemetery grounds should be forever exempt from taxation; that one or more soldiers of the United States were buried on the land set apart to the United States National Cemetery; that the land sought to be subjected lies wholly within the grounds of the cemetery which, under the charter and deed from the city of Louisville, is to be perpetually held and used for a cemetery; that, the grounds are inclosed by a permanent wall, 13 inches thick and 9 feet high, made of vitrified brick laid in cement; that the land sought to be subjected has been graded and prepared for use as burial lots; that shrubbery, trees, and ornamental plants have been set out and are growing thereon; that some graves are upon the land, and that the land cannot be lawfully used or occupied by a purchaser without injuring the wall inclosing the cemetery, or interfering with or mutilating the grave or graves and gravestones included in it, or without destroying the only entrance to the cemetery from Payne street; that over 43,000 of the dead are buried in the cemetery, and that an entrance into it from Payne street is necessary for the proper use and maintenance of the cemetery; that by reason of the premises the city had no power to make the cost of the improvement of Payne street a charge upon the abutting property used as a cemetery, or to subject the property, or any part thereof, to sale. The plaintiff demurred to the answer. The circuit court overruled the demurrer to the answer, but intimated that, though the land could not be subjected, the cemetery company might be required to pay the apportionment warrant. There was an issue between the parties as to how much of the cost of building the street should be apportioned to the cemetery company; but this was settled by an agreed order by which Gosnell recovered of the city of Louisville $595.32. And it was agreed that the balance of the warrant, to wit, $520.17, was the correct proportion of the contract price which should be calculated against the land of the Cave Hill Cemetery Company; but it was stipulated that this judgment should not operate or be construed in any way as an admission by the company that it, or its land, or its funds were in any manner liable for the balance of the apportionment warrant. The plaintiff filed an amended petition, in which he alleged that the cemetery company had funds on hand more than sufficient to pay the claim. The cemetery company demurred to the amended petition; its demurrer was overruled. It then filed an answer, in which it alleged that it was engaged in the improvement and ornamentation of the cemetery, and that it received money from the sale of burial lots, also money from lot owners to be used exclusively in the annual care of their respective lots and graves; that its revenues were sufficient to satisfy its running expenses only by economy; and that all the money it received was dedicated to the care, and upkeep, and beautifying of the cemetery. The circuit court sustained a demurrer to its answer, and entered a judgment, whereby he adjudged the plaintiff a lien on the property of the cemetery for $520.17, with interest and cost, excepting out of the judgment the land conveyed to the United States National Cemetery. It was further adjudged that, it appearing to the court that the lot of land against which the lien was adjudged is inclosed as part of a burial ground of the dead, the same should not be sold by the commissioner at public sale; but that, it appearing that the cemetery company had more than sufficient funds accumulated as a surplus, it was adjudged that it within 20 days pay into court a sum of money sufficient to satisfy the decree. The cemetery company appeals.

In Louisville v. Nevin, 10 Bush, 549, 19 Am. Rep. 78, a suit was brought to subject the land of a cemetery to a street assessment. Refusing to subject the property, the court said: "The chancellor will not decree that to be sold which cannot lawfully be used for the ordinary purposes to which property of a like character is commonly applied and especially when there is no imaginable beneficial...