City of Louisville v. Nevin

• Decision Date: 27 January 1874
• Citation: 73 Ky. 549
• Parties: Louisville v. Nevin, & c.
• Court: Kentucky Court of Appeals

73 Ky. 549

Louisville v. Nevin, & c.

Court of Appeals of Kentucky.

January 27, 1874

APPEAL FROM LOUISVILLE CHANCERY COURT.

T??. L BURNETT, For Appellant,

CITED

Dillon on Municipal Corporations, section 616.

Charter of 1870 of Louisville, section 7.

8 Bush 518, Broadway Baptist Church v. McAtee & Cassily

4 Coms. 419, People v. New York 11 Johnson, 77

7 Md. 517, Baltimore v. Cemetery Company.

4 Gill, 394, Dolan v. Baltimore.

31 Penn. St. 69, Pray v. Northern Liberties.

DUKE & RICHARDS, R. J. ELLIOTT, For Appellees,

CITED

Amendment of Feb. 20, 1873, of Charter of Louisville.

Act of Feb. 20, 1864, Myers's Supplement, 482.

8 Bush, 518, Broadway Baptist Church v. McAtee & Cassily.

7 Md. 157, Mayor of Baltimore v. Green Mount Cemetery.

4 Gill, 394. 13 Penn. St. 104.

8 R. I. 474.. 11 Johnson, 77.

20 Ill. 423. 24 Mo. 20.

46 N.Y. 506, Buffalo City Cemetery v. Buffalo.

OPINION

COFER JUDGE:

The appellee Nevin brought this suit in the Louisville Chancery Court to enforce an alleged lien on a lot of ground on the south side of Jefferson Street in said city for the price of regrading, recurbing, and repaving the sidewalk along the front of the lot.

The lot was conveyed by the city in 1834 to be held in trust for the use of the Roman Catholic congregation in Louisville as a burying-ground, and has been filled with graves for more than twenty years, and has never been used since 1834 for any other purpose than as a graveyard; and it is admitted that no revenue is derived from it, and that the Right Rev. Bishop McClosky, who now holds the title as trustee, has no funds in his hands belonging to the trust with which to pay the assessment.

The sole question therefore is, whether the lot can be sold to satisfy the claim of the contractor for work, which is admitted to be a lien, unless the property is in some way exempted from it.

It is insisted for the trustee that the lot is exempt from assessment under section 10 of an act entitled " An act to tax railroads, turnpike roads, and other corporations in aid of the sinking fund," approved February 20, 1864. (Myers's Supplement, p. 482.) But we need not decide whether that act would have the effect claimed for it or not, as in our opinion the judgment dismissing the petition, so far as it was sought to sell the lot, must be affirmed upon a more obvious ground.

The lot having been completely filled with graves, and thus rendered useless for any other purpose than as a resting-place for the dead, unless their graves are to be desecrated by being built over or dug up, or by the use of the property for the ordinary purposes of town-lots, the chancellor would hesitate to lend his aid to subject it to sale. We know it has been intimated by courts for whose opinions we have a high regard that this is a matter of sentiment with which courts have nothing to do; but fortunately we are not reduced to the alternative to decree the sale of a graveyard already filled with the ashes of the dead, or of...