Eden Memorial Park Ass'n v. Department of Public Works

• Decision Date: 20 December 1962
• Citation: 27 Cal.Rptr. 503
• Parties: EDEN MEMORIAL PARK ASSOCIATION, a California non-profit corporation, and Sol Rosenberg, Plaintiffs and Appellants, v. The DEPARTMENT OF PUBLIC WORKS of the State of California et al., Defendants and Respondents. Civ. 26719.
• Court: California Court of Appeals Court of Appeals

Page 503

27 Cal.Rptr. 503

EDEN MEMORIAL PARK ASSOCIATION, a California non-profit corporation, and Sol Rosenberg, Plaintiffs and Appellants, v. The DEPARTMENT OF PUBLIC WORKS of the State of California et al., Defendants and Respondents.

Civ. 26719.

District Court of Appeal, Second District, Division 2, California.

Dec. 20, 1962.

Rehearing Denied Jan. 15, 1963.

See also 24 Cal.Rptr. 707.

Sandler & Rosen, Nelson Rosen, Thorpe, Sullivan, Clinnin & Workman, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., N. B. Peek, Don G. Kircher, Deputy Attys. Gen., for respondents State Treasurer and State Controller.

George C. Hadley, Los Angeles, George W. Miley, Pacoima, Charles E. Spencer, Jr., Los Angeles, and Robert E. Reed, Sacramento, of counsel, for remaining respondents.

ASHBURN, Justice.

Appellants herein obtained from Division Three of this court, prior to the commencement of this action, a peremptory writ prohibiting the Superior Court of Los Angeles County from taking further proceedings in a condemnation action brought by the State of California, acting through its Department of Public Works, for the taking in fee for state highway purposes a portion of a certain private cemetery owned and operated by appellant Eden Memorial Park Association; the writ followed a holding that use for a public highway would violate §§ 8560 and 8560.5 of the Health and Safety Code of this state.

Section 8560 provides: 'After dedication pursuant to this chapter, and as long as the property remains dedicated to cemetery purposes, no railroad, street, road, alley, pipe line, pole line, or other public thoroughfare or utility shall be laid out, through, over, or across any part of it without the consent of the cemetery authority owning and operating it, or of not less than two-thirds of the owners of interment plots.' ¹ The taking for such use by condemnation was also held in Eden Memorial Park Ass'n. v. Superior Court, 189 Cal.App.2d 421, 11 Cal.Rptr. 189, to be equally contrary to the declared public policy of this state. That decision was rendered on February 24, 1961.

Ever since that date appellants have been engaged in resisting a determined effort on the part of the Board of Public Works, the State Highway Commission and other public officials, to build said freeway across said cemetery in disregard of that prohibition decision and to the subversion of the plainly declared public policy of the state,--all of them public officials bound to uphold the laws of the state.

The facts are set forth in a 'Stipulation of Facts for Disposition on the Merits' upon which the instant action was submitted; said stipulation is supplemented herein at times by judicial notice of files of this court in related proceedings, all of which are mentioned in said stipulation.

Eden Memorial Park Association (sometimes referred to as Eden) is a non-profit corporation organized in California; it owns and operates a private cemetery known as Eden Memorial Park Cemetery within the boundaries of the City of Los Angeles. Sol Rosenberg (one of appellants) is a director of the cemetery corporation and a taxpayer; he sues in the latter capacity.

Paragraph 4 of the stipulation says: 'Eden Cemetery is a private cemetery, operated and conducted in accordance with the provisions of Sections 8275 through 8806 of the Health and Safety Code of the State of California. It is held, occupied and used exclusively for a cemetery and for cemetery purposes. It was dedicated exclusively for cemetery purposes on or about July 4, 1954, pursuant to the provisions of Sections 8550 through 8561 of the Health and Safety Code of the State of California. Approximately 60 acres of land are included within the gross land area of said cemetery. That part of the cemetery involved in this case is described in 'Exhibit 1' to the Complaint filed herein, and said description is incorporated herein by reference. Hereinafter said part will be referred to as the 'subject land', and it contains approximately 11.740 acres. No burials have thus far been made in the subject land, although within the last five years, approximately 1,000 burials have been made in other portions of Eden Cemetery.'

Paragraph 5: 'Proposed plans for the construction of the San Diego Freeway and the Golden State Freeway, to be a part of the National System of Interstate and Defense Highways, in the vicinity of the subject land were submitted by the Division of Highways of the Department of Public Works of the State of California to the Federal Bureau of Public Roads by Contracts Nos. 1-005-3(34) 154 and 1-405-3(35) 163, pursuant to Section 105, Subdivision (a) of 23 U.S.C.A. Said proposed plans were approved by the Federal Bureau of Public Roads by contracts with the said Division of Highways of the Department of Public Works executed on June 22, 1955. ² Copies of said contracts, marked 'Exhibit 1(a)' and 'Exhibit 1(b)' are submitted herewith and may be introduced herein as exhibits.' (Emphasis added.)

Paragraph 9: 'Eden and the owners of interment plots in Eden Cemetery do not consent to and have never consented to the laying out of a freeway, or a road, or a public thoroughfare through, over or across Eden Cemetery, or across the land embraced within the boundaries of said cemetery or the subject property * * *.'

The California Highway Commission adopted a resolution on August 31, 1960, authorizing the acquisition by condemnation of a described portion of the cemetery property 'for State highway purposes in connection with State highway road, VII-LA-158-LA, declared a freeway.' The action was filed in Los Angeles on November 1, 1960, and on November 7 the superior court made an ex parte order for immediate possession. Motion to vacate was made by Eden and was denied on January 5, 1961. Thereupon Eden and Rosenberg filed their petition for writs of review and prohibition which was vigorously opposed by the Department of Public Works of the State. In an opinion filed on February 24, 1961, Division Three of this court annulled the order granting immediate possession and ordered the issuance of a peremptory writ prohibiting the court from proceeding further in the condemnation action. Speaking through Nourse, J. pro tem, the court said, in part: 'The sole question presented here is: May the state exercise the power of eminent domain so as to condemn and take for freeway purposes lands which have been theretofore dedicated exclusively to cemetery purposes, or are such lands exempt from such condemnation by the state? The answer to this question depends upon the construction placed upon sections 8560 and 8560.5 of the Health and Safety Code. * * * There is no contention on the part of respondent or real party in interest that it was not the intent of the Legislature, by this statute, to exempt property dedicated to cemetery purposes from classes of property which are subject to be taken under the power of eminent domain but they assert that they are not so exempt when the state or any agency thereof, such as real party in interest, seeks to take the property for freeway purposes.' (189 Cal.App.2d p. 423, 11 Cal.Rptr. p. 190.)

'It has long been the policy of this state that places where the dead are buried shall be protected and preserved against interference, molestation or desecration. This policy was first expressed by the Legislature in 1859 when by statute the Legislature exempted all cemeteries from public taxes and provided that so long as the land was held for cemetery purposes no street, avenue, road or thoroughfare should be laid out over it (Stats.1859, pp. 281, 284), and has been adhered to since that time (see Stats.1911, p. 1100; Stats.1931, ch. 1148, p. 2451; Stats.1939, ch. 60, §§ 8558, 8559, 8560 and 8561), and in 1926 the people took away from the government of the state the right to exercise its inherent sovereign power to tax insofar as certain property dedicated to cemetery use was concerned. Cal.Const., art. XIII, § 1b. The Legislature has not only protected burial grounds from molestation and desecration through invasion thereof by the public by means of public roads, highways and thoroughfares, but exempted them from assessments for public improvement, sale on execution and the conveyance thereof from the rule against perpetuities and restraint upon alienation (§§ 8559-8561, Health & Saf. Code), and its purpose in so doing is clearly expressed in section 8559 of the Health and Safety Code (this is a codification of Stats. 1931, ch. 1148, § 8), through the following language: 'Dedication to cemetery purposes pursuant to this chapter * * * shall be deemed to be in respect for the dead, a provision for the interment of human remains, and a duty to, and for the benefit of, the general public.' (Emphasis added.)

'It is clearly and admittedly the purpose of the statutes to exclude real property dedicated to cemetery purposes from property which may be taken, under the powers of eminent domain, for roads, streets or other public thoroughfares. It is self-evident that this purpose would be defeated if the state, its agencies or its political subdivisions may exercise the power of eminent domain to take such dedicated property for those purposes, for they, and they only, have the power to take private property for those purposes.' (159 Cal.App.2d pp. 424-425, 11 Cal.Rptr. p. 191.)

'The Legislature has granted to real party in interest the right to exercise the state's power of eminent domain. Section 102 of the Streets and Highways Code provides in part: 'In the name of the people of the State of California, the department may condemn for State highway purposes, under the provisions of the Code of Civil Procedure relating to eminent domain, any real property or interest therein which it is authorized to acquire.' (Emphasis added.)' (159 Cal.App.2d pp. 425-426, 11 Cal.Rptr. p. 192.)

'* * * If dedicated cemetery property remains subject to the power of the state, its agencies and...