Frost v. Columbia Clay Co.

• Decision Date: 14 October 1924
• Docket Number: 11577.
• Citation: Frost v. Columbia Clay Co., 130 S.C. 72, 124 S.E. 767 (S.C. 1924)
• Parties: FROST v. COLUMBIA CLAY CO. ET AL.
• Court: South Carolina Supreme Court

124 S.E. 767

130 S.C. 72

FROST v. COLUMBIA CLAY CO. ET AL.

No. 11577.

Supreme Court of South Carolina

October 14, 1924

Appeal from Common Pleas Circuit Court, of Richland County; J. W. De Vore, Judge.

Action by W. H. Frost against the Columbia Clay Company and others. Judgment for defendants, and plaintiff appeals. Reversed, and new trial ordered.

The defendants claimed that plaintiff had abandoned the burial ground and left it uncared for for a period of more than 20 years preceding the commencement of such action, and during such time had asserted no claim in the property, and that defendants did not know that the land was a burial ground and discontinued excavating on discovery thereof. Witnesses for defendants testified that there was nothing to denote where burial ground was and that land had no characteristics of a cemetery. Defendants' employees testified that they did not know that land was a graveyard, that they had received no notice thereof, and that on discovery of bones they had offered to assemble bones, level up yard, put fence around it and maintain it, and would not have made excavations if they had known that land was burial ground.

Cothran J., dissenting.

D. W Robinson and D. W. Robinson, Jr., both of Columbia, for appellant.

Thomas & Lumpkin, of Columbia, for respondents.

FRASER J.

The respondents make the following statement:

"As noted in the case for appeal, this was an action commenced in November, 1922, by the plaintiff against the defendants, for damages for the trespassing on and excavating in a graveyard which had formerly been the family burying ground of the plaintiff's family.

The trial court directed a verdict for the defendant on the ground that the alleged burial place had been abandoned.

It is admitted that excavations were made in what had formerly been the burying ground of the Frost family, and that some bones were unearthed.

In the motion for directed verdict for the defendant, a number of grounds were submitted, but the presiding judge stated that there were only two grounds which he would consider; that is to say, the question of notice to the defendant company of the existence of a graveyard and the question of abandonment, and the other grounds were overruled, but in order to properly controvert the exceptions raised by the appellant it is necessary to bring to the attention of this court the several grounds raised on the trial of the case by the respondents.

The court directed a verdict in favor of the defendant, on the primary ground that the alleged burial place had been abandoned. Using the words of the court in commencing on the testimony of the plaintiff, Mr. Frost, the judge, says: 'The undisputed evidence of the plaintiff in this case, out of his own lips, is that that graveyard had not been used in over 20 years; and it was over 20 years ago since the last two people were buried in it. It has grown up in trees or shrubbery, and has been discontinued as a burial place, even for the family of the plaintiff.' "

The plaintiff moved for the direction of a verdict, leaving only the amount to the jury. The presiding judge refused the motion of the plaintiff and directed a verdict for the defendant, as above stated. It is not necessary or proper to discuss the evidence, as this case must go back.

1. The first question is: Is there indisputable evidence that this family graveyard had been abandoned? There was not. While there is no case in this state directly in point, yet Ex parte McCall, 68 S.C. 492, 47 S.E. 974, throws some light on it.

"It is also true, as a general proposition, that where ground has been dedicated to the public for use as a cemetery, the owner cannot afterward resume possession or remove the bodies interred therein, although he has received no consideration for its use, and the interments were made merely by his consent. [ Cases cited.] This doctrine is somewhat anomalous, and is not to be extended beyond the principle upon which it is founded. That principle is that the most refined and sacred sentiments of humanity cluster around the graves of departed loved ones, and that when these sentiments have become associated and connected with a particular spot of ground, by the invitation or consent of the owner, he shall not, for any secular purpose, disturb them."

The laws do, or should, set forth the sentiment of the people who are subject to them. This is particularly true under a government like ours. From the time of Abraham, the places where the dead were buried have been considered sacred and inviolate. All nations respect the graves of the dead. The graves of ancestors are a subject of idolatrous worship by the heathen. Our literature is full of references to the last or final resting place. In some of our church literature we find the statement that the bodies of our dead "do rest in their graves until the Resurrection." These burial places are sometimes called "God's Acre." The idea of perpetuity runs through nearly all references to the grave. Of course, as in nearly every other matter, there are exceptions. As was said in Ex parte McCall, sometimes the tenderest love requires the removal to more suitable surroundings.

The abandonment of a burying place is accomplished by the removal of the remains to a more suitable place. The change of the place for the burial of those who die, or have died after a given time, does not constitute an abandonment of a graveyard, and his honor was in error in so holding.

2. There was no error in refusing to direct a verdict for the plaintiff. While it is true that a graveyard may not be abandoned except by the removal of the remains of the dead, that does not mean that a man may not abandon his right to damages, for the negligent or willful invasion of what should be a hallowed spot. The defendant pleaded estoppel and there was evidence upon which a verdict for estoppel might have been based. The injunction is not in issue. To this the respondent consents.

Besides this, the defendants claim that they did not know that there was a graveyard there, and, without fault of their own, they dug up the bones, and at once stopped when they found out their mistake. These were matters for the jury.

The judgment is reversed, and a new trial ordered.

WATTS and MARION, JJ., concur.

COTHRAN J. (dissenting).

I think that Judge De Vore was entirely right in directing a verdict for the defendants, and I therefore dissent from the conclusion announced to the contrary, in the opinion of Mr. Justice FRASER.

This is an action for $50,000 damages, and for a permanent injunction, against the defendants, on account of an alleged trespass committed by them, in excavating through a graveyard in which relatives of the plaintiff had been buried, by which the bones of the dead were disturbed and scattered.

The graveyard in question is located a few miles north of Columbia, on a part of the old Faust or Frost lands, at one time owned by Sarah Faust, who was the grandmother of the plaintiff, having married John D. Frost, his grandfather. Later it was owned by J. Frost Walker, and by him it was conveyed to F. H. Hyatt, who conveyed a part of it to the defendant Columbia Clay Company. The area of the graveyard, by survey, is 100X150 feet, elliptical in form, and contains slightly less than one-third of an acre. The line between the defendant's land and the other part of the Frost lands divides the graveyard plot about equally. It had been established as a family graveyard many years ago, perhaps 100. Both of the plaintiff's grandparents were buried there, one of them in 1880, and the other many years before; a brother and sister were buried there about 45 years ago, also an infant daughter in May, 1901, and an uncle in July that year. The uncle was the last person to be buried there. Since that time, 1901, it appears to have been recognized by the older people simply as the place where the persons above named had been buried. During the time the land was owned by Hyatt, all of the trees in and around the graveyard were cut down, and the spot has long since grown up in weeds, bramble, and blackberry bushes. Not a single member of the family is shown to have visited it in more than 20 years; not a rake, hoe, or axe has broken the "solemn stillness"; no fence has inclosed it; not a monument, or even a rude headstone, marks a single grave; the mounds even have long since disappeared, levelled with the ground, as if emphasizing the consignment of "dust to dust"; it has presented a picture of abject neglect; the silent sleepers have become, indeed, "to dumb forgetfulness a prey." It may appropriately have been called "God's Acre," for He alone had visited it and hidden with undergrowth the human shame of neglect.

"Above the graves the blackberry hung,

In bloom and green its wreath,

And harebells swung, as if they sung

The chimes of peace beneath."

The plaintiff himself could not locate a single grave and exhibited no interest until the alleged desecration occurred, when he called upon the negro gravediggers to assist him in locating the graves, which they could not do. He then gathered the scattered bones and skull of his relative together, with the remark, "These will be good evidence," and carried them home in preparation for the damage suit which quickly followed. His witness Elliott says:

"It looked like a waste piece of ground. I was there numbers of times shooting around it and playing around, and I didn't know it was a graveyard. * * * In fact, I have been there numbers of times before I knew it was a burying ground."

How it can be said that there is no indisputable evidence that the family graveyard has been abandoned is inconceivable to me.

In the summer and fall of 1922, the defendant, in order to lay a...