Garden Cemetery Corporation v. Baker

• Decision Date: 17 June 1914
• Parties: GARDEN CEMETERY CORPORATION v. BAKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 339

105 N.E. 1070

GARDEN CEMETERY CORPORATION v. BAKER.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Wm A. Parker, of Boston, for complainant.

J Weston Allen and Henry W. Packer, both of Boston, for defendant.

OPINION

RUGG C.J.

This is a petition in equity to remove a cloud on title to land created by tax sales and deeds alleged to be invalid. Relief may be granted in appropriate cases for that cause under the general principles of equity. Smith v. Smith, 150 Mass. 73, 22 N.E. 437. The bill also contains apt allegations and prayers for redeeming from these sales under R. L. c. 13 § 75, as amended by St. 1905, c. 325, § 3 (now St. 1909, c 490, pt. 2, § 76), provided the tax sales are held to be valid. Barker v. Mackay, 168 Mass. 76, 46 N.E. 412. No objection has been or rightly could be made to joining these two grounds for an equitable remedy in one suit and relying upon the one to which it may be found to be entitled. The only question open in this proceeding is whether the assessment was legal. No inquiry can be made as to the propriety of its amount.

The plaintiff is not precluded by the lapse of time from maintaining this bill either under the statute or under general chancery jurisdiction. No one has been misled to their harm in any legal sense by the delay, and the situation has not materially changed. The suit was instituted within the time limited for redemption in the statute, provided equity requires that redemption be allowed. The doubt whether a cemetery was liable to such an assessment and hence whether the sales to satisfy them were valid was so well founded that the petitioner ought not to be precluded from the right to redeem, even if its property by found to have been subject to the assessment.

The point at issue is whether land devoted to the purposes of a burial ground and belonging to a private cemetery corporation organized under the general laws, is liable to an assessment for street watering made under R. L. c. 26, § 26, as amended by St. 1909, c. 440, § 2. The constitutionality of this act is established so far as it applies to ordinary city or town estates. Sears v. Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834; Corcoran v. Cambridge, 199 Mass. 5, 85 N.E. 155, 18 L. R. A. (N. S.) 187.

No express exemption relieves the plaintiff. By St. 1909, c. 490, pt. 1, § 5, cl. 8, cemeteries are exempted from taxation so long as they are dedicated to the burial of the dead. But that exemption refers only to taxation imposed for the general public purposes of the sovereign power and does not include exemption from local assessments for special advantages arising out of particular improvements of a public nature undertaken by government, such as the laying out of streets and sewers and like matters. Boston Seamen's Friend Society v. Boston, 116 Mass. 181, 17 Am. Rep. 153; Worcester Agricultural Society v. Worcester, 116 Mass. 189; Boston Asylum & Farm School for Indigent Boys v. Boston, 180 Mass. 485, 62 N.E. 961. Street watering belongs to this class of special assessments. Phillips Academy v. Andover, 175 Mass. 118, 55 N.E. 841, 48 L. R. A. 550.

The plaintiff contends that it is exempt from the operation of the act because it says that as matter of law a cemetery can receive no benefit from the watering of adjacent streets, and because under a betterment statute like this no assessment can be levied in excess of the benefit actually conferred, and that, as there can be no benefit, there can be no assessment. It rests this contention upon the ground that the private benefit conferred by such a public service as street watering must be of a character to enhance the rental or sale value of the real estate, or to confer some actual or potential pecuniary advantage upon the owner, and that cemetery property, having no market value, cannot in the nature of things receive benefits of that sort. But this position is not tenable. The plaintiff has not obligated itself to perform public duties. It is not by law required to maintain a cemetery for any particular portion of the public other than those to whom it may sell lots. Its power is unrestricted to limit its lot owners by by-law or otherwise. Milford v. County Commissioners, 213 Mass. 162, 100 N.E. 60. As was said in Donnelly v. Boston Catholic Cemetery Ass'n, 146 Mass. 163, at page 166, 15 N.E. 505, at page 507: 'It would be acting strictly within its powers if it sold all its lands for full price.' It may sell or mortgage its real estate without special legislative authority, such authority being conferred by general law. R. L. c. 78, § 2; chapter 109, § 6. See Sweetser v. Manning, 200 Mass. 378, 86 N.E. 897. In this respect it differs from public service corporations. Atty Gen. v. Haverhill Gas Co., 215 Mass. 394, 101 N.E. 1061. The plaintiff is not exempt from such assessment as a public corporation. See Boston v. B. & A. R. R. Co., 170 Mass. 95, 49 N.E. 95. The plaintiff belongs to the class of private cemetery corporations which, although clothed with certain important privileges, belongs nevertheless to its legal and beneficial owners, who are at liberty to appropriate or sell it for general purposes.

It is conceivable that cemetery property may receive a direct and peculiar benefit from the watering of adjacent streets. The freedom from clouds of offensive dust enjoyed by those who have occasion to visit it, the refreshment of its vegetation and the general cleanliness of its trees, monuments and cenotaphs, allaying the heat of the atmosphere and rendering it fresher, all are elements of direct and special benefit. These advantages, if found to flow from street watering, well might render the cemetery more attractive and enable the plaintiff to sell its remaining lots more readily or at a higher price, or to charge more for annual care of lots already sold, than would be possible without them. The facts presented are or may be found to be quite different from those disclosed in Mt. Auburn Cemetery v. Cambridge, 150 Mass. 12, 22 N.E. 66, 4 L. R. A. 836, where the land by legislative act was dedicated perpetually to the uses of a burial ground, its conveyance or use for any other purpose forbidden and its income from sales of lots required to be devoted to its improvement, and all private profit prohibited. Yet there the question was left open whether, if a public sewer were needed and used for the benefit of the land as a place for burial, an assessment therefor might not be levied, even though it was held that Mt. Auburn, by reason of special legislative acts, could not be subjected to a general assessment for a sewer which it did not use. The plaintiff is a corporation with quite different powers than those conferred upon the corporation there before ...