Concerned Loved Ones and Lot Owners Ass'n of Beverly Hills Memorial Gardens v. Pence

Citation181 W.Va. 649,383 S.E.2d 831
Decision Date21 July 1989
Docket NumberNo. CC993,CC993
PartiesThe CONCERNED LOVED ONES AND LOT OWNERS ASSOCIATION OF BEVERLY HILLS MEMORIAL GARDENS, an Unincorporated Association, by the Following Persons: Mary L. Martin KOON, Ruby Alice Tennant, Milton Cohen, Delores J. Lloyd, Mabel Riffle, William A. Dilgard, Joe Prudnick, Mabel Prudnick, Ruby Tennant and the Class of Members of Said Association; The Above Persons and Association as Representatives of the Class of Lot Owners in, Persons who are to be Buried in, and Relatives and Friends and Loved Ones of Those who are and are to be Buried in, Beverly Hills Memorial Gardens v. Richard PENCE, Individually and in his Capacity as President of Beverly Hills Memorial Garden, Inc.; Beverly Hills Memorial Garden, Inc., a Corporation; and Sandridge Coal Company, Inc., a Corporation.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. The provisions of W.Va.Code, 35-5-2 [1967] apply only to the types of entities set forth in W.Va.Code, 35-5-1 [1931].

2. When land has been dedicated to cemetery purposes, the next of kin of those buried in the cemetery, as well as those who own land for burial in the cemetery, have a cause of action to prevent, or recover damages resulting from, the unlawful desecration of such cemetery.

James M. Wilson, Richard M. Yurko, Jr., Clarksburg, for Pence and Beverly Hills Memorial Gardens, Inc.

Larry Harless, Thomas Rodd, Charleston, for Concerned Loved Ones and Lot Owners Ass'n of Beverly Hills Memorial Gardens.

Billy B. Atkins, Morgantown, for Sandridge Coal Co.

McHUGH, Justice:

This action is before the Court upon certified questions from the Circuit Court of Monongalia County. The plaintiffs are members of the Concerned Loved Ones and Lot Owners Association of Beverly Hills Memorial Gardens. The defendants are Richard Pence, Beverly Hills Memorial Gardens, Inc., and Sandridge Coal Company, Inc.

We have reviewed the arguments of the parties and all matters of record. 1


On September 24, 1930, seventy acres of land in Monongalia County were acquired by the Beverly Hills Memorial Park Association, a corporation formed for the purpose of establishing a cemetery. Cemetery lots were sold, including many to the plaintiffs and their relatives who are buried at Beverly Hills Memorial Gardens.

On December 3, 1952, the Beverly Hills Memorial Park Association conveyed the seventy acres to the Memorial Gardens Development Corporation. Cemetery lots continued to be sold, and additional areas within the seventy acres were maintained and developed into lots, although unsold. Currently, fifty acres are maintained and developed for cemetery use.

On March 8, 1984, Memorial Gardens Development Corporation sold the seventy-acre tract to the defendant, Beverly Hills Memorial Gardens, Inc. (hereinafter "BHMG"), of which the defendant, Richard Pence, is president.

All of the deeds conveying the property contained language which required the grantee to assume all of the obligations of the grantor to the lot owners and lot purchasers.

In October, 1986, BHMG sold twenty acres to Richard Pence, individually. These twenty acres were not maintained or developed into cemetery lots. Pence did not give notice of this sale pursuant to provisions set forth in W.Va.Code, 35-5-2 [1967]. 2

Pence caused substantial timber to be cut from the twenty acres he purchased. Pence also leased the twenty acres to Jasper Petitte to mine coal by strip, surface or auger mining, under the name of Sandridge Coal Company, a defendant in this case.

The plaintiffs filed suit in the Circuit Court of Monongalia County upon learning of the sale of the twenty acres and the mining. The Department of Energy required that the mining be suspended, pending the outcome of the plaintiffs' suit. The plaintiffs' suit is based upon several actions in contract, tort, and violations of public policy.

Pence asserted that he may eventually develop the twenty acres into cemetery lots after they are mined. However, he contends that the twenty acres are not part of the cemetery. Furthermore, he maintains that because BHMG is a private, for-profit corporation, operating a perpetual care cemetery, the notice and referendum procedures set forth in W.Va.Code, 35-5-2 [1967] do not apply to the sale or his actions on the land.

The defendants moved for summary judgment, and the circuit court, joined by the defendants, certified questions to this Court concerning: (1) whether the notice and referendum procedures of W.Va.Code, 35-5-2 [1967] apply to the sale of the twenty acres of land in this case; and (2) whether the plaintiffs have a cause of action against BHMG and Pence to enjoin the sale of the twenty acres and recover damages related to cemetery desecration. 3

The circuit court answered these questions in the negative. We agree with the circuit court's answer to question (1) and disagree with the circuit court's answer to question (2).


At the outset, we dispose of the plaintiffs' contention having the least merit. The plaintiffs maintain that W.Va.Code, 35-5-2 [1967] requires the defendant, BHMG, to give notice before selling the cemetery or any part thereof. W.Va.Code, 35-5-2 [1967] provides:

The trustees of any burial grounds, or any incorporated cemetery association whenever it is deemed advisable by such trustees or association, and is not prohibited by the terms of the conveyance, dedication or devise of such grounds, may sell and convey any part of such burial grounds or land of such association without restriction as to its use, if such sale and conveyance will not render any lot previously sold for burial purposes inaccessible for such purposes, or detach it from the main body of the cemetery. But no such sale shall be made by such trustees or such association unless authorized by a majority of the lot owners present and voting at a general meeting or special meeting, of which meeting and its object previous notice shall be given by advertising the same as a Class II legal advertisement in compliance with the provisions of article three [§ 59-3-1 et seq.], chapter fifty-nine of this Code, and the publication area for such publication shall be the county in which the cemetery is situated. No desecration shall be made of any grave or monument, or any of the walks, drives, trees, or shrubbery within the enclosure of any burial grounds; nor shall any shaft or entry be made within the enclosure of such burial grounds, or any building be erected therein for any purpose whatever other than cemetery purposes.

The plaintiffs contend that this statutory provision applies to all cemeteries, regardless of who owns and operates the cemeteries. We disagree.

Although privately owned, BHMG is a "public cemetery" because it is open, under reasonable regulations, to the use of the public for the burial of the dead. See Smith & Gaston Funeral Directors, Inc. v. Dean, 262 Ala. 600, 608-09, 80 So.2d 227, 234 (1955); Davie v. Rochester Cemetery Association, 91 N.H. 494, 495, 23 A.2d 377, 378 (1941); Parker v. Fidelity Union Trust Co., 2 N.J.Super. 362, 390, 63 A.2d 902, 916-17 (Ch.Div.1944). See also 14 Am.Jur.2d Cemeteries § 2 (1964). BHMG is not an incorporated cemetery association and there are no trustees who oversee the operation of the cemetery.

W.Va.Code, 35-5-1 [1931] provides:

Where any conveyance, dedication or devise was made of land for burial grounds, to any church, religious sect, society, congregation, or denomination, or to any benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association that has dissolved or become extinct in the county and vicinity where such burial grounds are situated, and the trustees of same have removed or died, the circuit court of such county, upon the application of five or more persons having relatives buried in such burial grounds, shall appoint five trustees, who for the time being and their successors shall be invested with all the powers necessary to promote and carry out the object and purposes named in such conveyance, dedication or devise.

(emphasis supplied) Similar to Code, 35-5-2, this section does not include private, profit-making corporations, such as BHMG.

W.Va.Code, 35-5A-2 [1973] states:

No person shall operate or continue to operate a perpetual care cemetery in West Virginia unless a permanent endowment care fund has been established, maintained and administered as required by this article. The income from the permanent endowment care fund so established shall be used only as permitted by this article.

(emphasis supplied) Article 5A of chapter 35 demonstrates a legislative intent to distinguish between those who own and operate any cemetery and those who operate a cemetery as trustees or as an association for a religious, benevolent or similar type organization. W.Va.Code, 35-5A-2 [1973] defines "person" as meaning "any corporation, company, partnership, individual, association or other entity owning or operating a cemetery for the disposition of human remains." (emphasis supplied ) W.Va.Code, 35-5A-1 [1973] defines "perpetual care cemetery" as "a cemetery which advertises or represents to the public in any manner that it provides perpetual care or maintenance for burial grounds, mausoleums or columbaria and the fixtures attached thereto or which sells or offers to sell any interment right which is to be perpetually cared for or maintained." (emphasis supplied)

It is clear, then, that when the legislature intends to impose requirements upon all cemeteries, the language of the statute will so indicate. "In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies." Syl. pt. 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984). Furthermore, "[s]tatutes which relate to the same subject matter should be read and applied together so that the...

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    ...allegations of grave desecration in connection with logging and strip mining in Concerned Loved Ones and Lot Owners Association of Beverly Hills Memorial Gardens v. Pence, 181 W.Va. 649, 383 S.E.2d 831 (1989). In Pence, this Court reiterated the established principle that a cemetery is prop......
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