Gruhl Realty Co. v. Groth (In re Cemetery)

• Decision Date: 03 May 1927
• Parties: IN RE ZUR RUHE CEMETERY. GRUHL REALTY CO. v. GROTH ET AL.
• Court: Wisconsin Supreme Court

193 Wis. 108

213 N.W. 657

IN RE ZUR RUHE CEMETERY.

GRUHL REALTY CO.

v.GROTH ET AL.

Supreme Court of Wisconsin.

May 3, 1927.

Appeal from Ozaukee County Court; J. E. Uselding, Judge.

Petition by William A. Groth and others to condemn lands of the Gruhl Realty Company for the Zur Ruhe Cemetery. From an order granting the petition and appointing commissioners to appraise the land, the Realty Company appeals. Affirmed.--[By Editorial Staff.]

This is an appeal from an order wherein it was found that it was necessary, for the purposes of the Zur Ruhe Cemetery, to have condemnation of certain parcels of land belonging to the appellant, Gruhl Realty Company, and by which order commissioners were appointed to appraise the land.

The petition, by twenty-three freeholders of the city of Cedarburg, sets forth that the cemetery association was organized pursuant to the statutes of the state, and operates a cemetery in said city, which cemetery, in their opinion, should be enlarged.

The property sought to be condemned consists of two separate parcels referred to in the proceedings as parcel No. 2 and parcel No. 3. The petitioners allege that said parcels cannot be secured except at an exorbitant price, and other facts necessary to give the court jurisdiction.

The Gruhl Realty Company, appellant herein, answered the petition and alleged that the cemetery association was formed by three persons, who operated it as a private venture until 1919, when the association was incorporated and the private owners conveyed the property known as parcel No. 1 to the association, which has since operated the cemetery.

The answer further alleges, as the fact is, that in 1889 the then owners of the cemetery, known as parcel No. 1, finding it desirable to enlarge the cemetery, plotted parcel No. 2, which plot was duly recorded in the office of the register of deeds; that thereupon one Robert Pfleger, who owned the land immediately north of parcels Nos. 1, 2, and 3, and who still owns said land, and then resided thereon and now resides thereon, began proceedings in the circuit court of Ozaukee county to enjoin the use of said parcel No. 2 for a cemetery; that in September, 1899, the circuit court for Ozaukee county entered a judgment in said action declaring said proposed use of parcel No. 2 as a cemetery a nuisance, and perpetually enjoined the owners of the land from using any part of it for burial purposes or for a cemetery. Such judgment remains of record, unmodified.

The answer further alleges that the owners of the land here sought to be condemned have not placed an exorbitant price on the land. Hearings were had on the petition and answer, with the result that the county court found that it was necessary, for the purposes of the Zur Ruhe Cemetery, that parcels Nos. 2 and 3 be acquired; that the lands could not be acquired except at an exorbitant price; that the price demanded by the owners of said tract of land was about the sum of $3,000; that the Zur Ruhe Cemetery is entitled to condemnation of parcels Nos. 2 and 3, and the court thereupon appointed commissioners to appraise said land, from which findings and order the appeal herein was taken. Parcel No. 2 is immediately east of the old cemetery, and parcel No. 3 is immediately east of parcel No. 2.

The appellant assigns as errors the granting of the petition, and the making of the order above referred to.Otjen & Otjen, of Milwaukee, for appellant.

Schanen & Huiras, of Port Washington, for respondents.

CROWNHART, J.

The proceedings herein were instituted under chapter 157 of the Statutes relating to cemeteries. Section 157.05, so far as material to this proceeding, reads as follows:

“(1) A cemetery * * * association * * * may take and hold not exceeding eighty acres of land, to be used exclusively for burial of the dead. * * *

(2) * * *

(3) When it is necessary to enlarge a public cemetery and...