England v. Central Pocahontas Coal Co.

• Decision Date: 07 September 1920
• Citation: 104 S.E. 46,86 W.Va. 575
• Parties: ENGLAND ET AL. v. CENTRAL POCAHONTAS COAL CO. BISHOP ET AL. v. CENTRAL POCAHONTAS COAL CO.
• Court: West Virginia Supreme Court

104 S.E. 46

86 W.Va. 575

ENGLAND ET AL. v. CENTRAL POCAHONTAS COAL CO.

BISHOP ET AL. v. CENTRAL POCAHONTAS COAL CO.

Supreme Court of Appeals of West Virginia.

September 7, 1920

Submitted September 1, 1920.

Syllabus by the Court.

While strictly considered there is no right of property in a dead body, nevertheless the right to bury a corpse and preserve the remains is a legal right, which in this country is regarded as a quasi right in property, the violation of which is cognizable in and may be redressed at the suit of near relatives by an action on the case against the wrongdoer.

Whether such right of burial exists by deed or by mere license, so long as it exists and is not lawfully revoked or destroyed it may be so redressed and protected in our courts by trespass or injunction.

Such actions, while in the nature of quare clausum fregit, are not strictly so, and title and actual possession are not prerequisites to the maintenance of trespass on the case for damages against the intruder and violator of sepulcher.

The declaration in this case describing the burial ground or cemetery as located in McDowell County, one hundred yards from the mouth of Upper Shannon Branch, a tributary of Tug River, and thirty or forty yards back from the bank of said branch, and a part of a tract of land owned in 1880 by Thomas M. Lester, is sufficiently certain for identification and is not bad for uncertainty of description.

Cases Certified from the Circuit Court, McDowell County.

Actions by Joseph England and another and by Mary Bishop and another against the Central Pocahontas Coal Company. Demurrers to declarations overruled, and questions certified. Affirmed.

Sanders & Crockett, of Bluefield, and Joseph M. Crockett, of Welch for plaintiffs.

Anderson Strother, Hughes & Curd, of Welch, for defendant.

MILLER J.

In responding to the questions certified we are called upon to say whether the declarations, as the circuit court determined they were, are good upon demurrer.

Both declarations are substantially alike except as to the persons of the plaintiffs and the names of their deceased relatives for the invasion and desecration of whose graves these actions were brought. It is averred in each case that many years prior to 1880 there was set apart and dedicated as a burying ground or cemetery a lot or parcel of land in McDowell County, about one hundred yards from the mouth of Upper Shannon Branch, a tributary of Tug River, and lying thirty or forty yards from the bank of said branch, which said lot was embraced in and was a part of a tract then owned by Thomas M. Lester, now deceased; that after said lot was so set apart, dedicated and consecrated as a burying ground or cemetery, there was buried therein the remains of Sallie England, the mother of the plaintiffs in the first of said actions; and in the second it is averred that the remains of Mastin C. Bishop, the son of the plaintiffs, was interred therein. And both declarations aver that on or about October 1, 1919, said defendant, by and through its agents and employés, without the knowledge and consent of plaintiffs and without any leave, authority or right whatsoever for so doing, willfully, wantonly, unlawfully and without regard for the rights and feelings of plaintiffs entered in and upon said cemetery and then there disinterred the bodies of the respective relatives of plaintiffs, and willfully, wantonly, unlawfully and without regard for their rights and feelings caused the caskets holding said bodies to be broken and pulled apart, and the bodies there to be exposed to public gaze; and that thereafter, by and through its said agents and employés, defendant caused said bodies so disinterred to be carried back into the mountains and there buried at a point unknown to plaintiffs, by reason whereof they were made to suffer great anguish, mortification, humiliation, insult and injury, wherefore the respective suits, and whereby they sustained damages respectively in the sum of ten thousand dollars.

The first proposition relied on to reverse the ruling below is that neither the common law nor any statute gives the next of kin or other relatives right of action against one who disturbs or disinters a dead body. Our statute, section 13 chapter 149, Code 1918 (Code 1913, sec. 5318), makes it unlawful for any person to disinter or displace a dead human body, or any part of a dead human body, which shall have been deposited in any vault or other burial place, and punishes the offense as a felony. Section 7 of chapter 103 (sec. 4411) says that any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of such violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages. However, in Virginia it was held that this statute was merely enacted to preserve existing causes of action and to prevent defendant from setting up the payment of the statutory penalty in bar thereof. Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914, 47 S.E. 996. It is conceded that at the common law there was no right of property in a dead body, and that once interred it became a part of the soil where laid; and in England the protection of sepulcher was generally controlled by the Ecclesiastical law. 2 Blackstone, 428; Meagher v. Driscoll, 99 Mass. 281, 96 Am.Dec. 759. In this country we have no Ecclesiastical law controlling the subject. The right however to bury a corpse and to preserve the remains is a legal right which the courts of this country recognize and protect; and this right is regarded as a quasi right of property. 17 Corpus Juris, p. 1139; 8 Ruling Case Law, p. 684; State v. Highland. 71 W.Va. 87, 76 S.E. 140. And the right, according to the authorities it this country, exists in...