Hertle v. Riddell

• Citation: 127 Ky. 623,106 S.W. 282
• Parties: HERTLE v. RIDDELL ET AL.
• Decision Date: 18 December 1907
• Court: Kentucky Court of Appeals

106 S.W. 282

127 Ky. 623

HERTLE v. RIDDELL ET AL.

Court of Appeals of Kentucky.

December 18, 1907

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Bill by Henry Hertle against Alice Riddell and others. From a judgment dismissing the petition, plaintiff appeals. Reversed, without directions.

O'Neal & O'Neal, for appellant.

C. B Seymour, for appellees.

BARKER J.

The appellant, Henry Hertle, instituted this action in the chancery branch of the Jefferson circuit court for the purpose of securing a mandatory injunction against Cave Hill Cemetery Company, Alice Riddell, W. G. Hansbrough, and Ada Hansbrough, requiring them to remove from the cemetery lot belonging to Hansbrough the body of a dog which was buried therein, as he alleged, in violation of the laws, rules, and regulations governing the cemetery company, and his rights as a lot owner therein. His petition sets forth that Cave Hill Cemetery Company is a corporation created by and under the laws of the state of Kentucky, with power under its charter, among other things, to ordain and put in execution such by-laws, rules, and regulations for its government and the management of its affairs as it may see proper, not contrary to the laws of the commonwealth of Kentucky or of the United States, and that by its charter it is expressly provided that all lands acquired by the corporation shall be perpetually held and used for the purposes of a "rural cemetery"; that long prior to the actions which are complained of in the petition, and prior to the purchase of lots therein either by the plaintiff or the codefendants of the cemetery company, the corporation adopted rules and regulations for the government of the cemetery and the management of its affairs, and among others it adopted the following, to wit: "This cemetery is set apart for the burial of the white race, and shall be used for cemetery purposes only"--which is still in full force and effect. As a succinct statement of the facts out of which grew this litigation, we copy the following excerpt from the petition: "He says that, for a valuable consideration paid by him to the defendant corporation, the defendant conveyed and transferred to him on its books, and in accordance with its charter, rules, and regulations, lot No 104, in section 1 of the cemetery, owned by defendant corporation, and known as and called Cave Hill Cemetery which is in the county of Jefferson, and state of Kentucky, and he has ever since been and now is the exclusive owner of said lot and has the right to bury the remains of his family and other persons in said lot, and to have his own remains after death buried in said lot; that since the purchase of his said lot as aforesaid he has buried the body of his daughter in said lot, and her body is now buried in said lot, and the residue of said lot is held by him as a place for the burial of the remains of other members of his family, and for the interment of his own remains; that he purchased said lot and caused the remains of his daughter to be buried therein long prior to the wrongs and injuries complained of herein, and relying on the charter, rules, and regulations of the defendant that the lands owned and burial lots sold by it would be used exclusively as a rural cemetery and for the exclusive burial of the remains of white persons, and that said lot and all the other lots owned by said defendant corporation would be used exclusively for said purpose. He states that the defendant Alice Riddell is now and was at the time of the wrongs and injuries hereinafter complained of the owner of lot No. 106, in section 1 of said cemetery, which she purchased and held under and subject to the provisions of the charter, rules, and regulations of said defendant corporation; that the said lot of defendant Alice Riddell adjoins and binds on the lot of this plaintiff; that the said defendant Alice Riddell, without the knowledge, consent, or approval of this plaintiff, or of any of the other lot owners in said cemetery, to the great shame, humiliation, and distress of this plaintiff and the other members of his family, permitted and authorized her codefendants W. G. Hansbrough and Ada Hansbrough to inter, and they did inter, in her said lot a dog, and the remains of said dog are now buried in said lot; that said wrongs were done without any authority from said cemetery company, and in violation of the rights of this plaintiff as a lot owner in said cemetery. He says that by said wrongful acts of said defendants which were made known and came to the knowledge of many of the citizens of Louisville and Jefferson county he and all the members of his family have been caused and will continue to suffer great mental distress, his said lot will be rendered of no value for any purpose, he will be compelled to remove from his said lot the remains of his daughter now buried therein, and will not be able to use said lot for burial or any other purposes; that the defendants in burying and permitting said dog to be buried on said lot committed and have ever since maintained a nuisance, which said nuisance by reason of its close proximity to the lot of this plaintiff caused to him peculiar and special injury and damage. He states that, as soon as he learned of the wrongs and injuries complained of herein, he demanded of the defendants and each of them that the remains of said dog should be removed from said lot, but the defendants refused to remove same, and notified this plaintiff that they intended to keep the remains of said dog perpetually in said lot. He states that the defendant corporation is willing, as he is informed, to abate said nuisance by removing the remains of said dog, but asserts that it cannot do so without the consent of its codefendants, and for that reason refuses to abate said nuisance. He states that the continuance of said nuisance would produce great and irreparable injury to the plaintiff, and its commission has produced great and irreparable injury to the plaintiff; that he has no adequate remedy at law, and the defendants and each of them are doing and suffering to be done all of said acts, all of which are in violation of plaintiff's rights." A general demurrer was filed by the defendants to the petition, and sustained by the court; whereupon the appellant (plaintiff below) refused to amend, and his petition was dismissed; and of this ruling he now complains.

The precise question involved here is stated in the briefs of learned counsel to be one of first impression, and their well-known learning and industry is a sufficient guaranty to us that the question has never been adjudicated before. The demurrer admits all of the well-pleaded allegations of the petition, and it therefore only remains to determine (1) what rights appellant as a lot owner in the cemetery possesses; (2) whether or not he can enforce by the processes of the law these rights as against an adjoining lot owner; and (3) whether the action of the defendants are violative of any legal right of the plaintiff. Cave Hill Cemetery is the principal burial place for the white people of the city of Louisville. It may be conceded at the outset that the purchaser of a lot from the defendant corporation does not become its owner in fee simple; that he has in it only the property right of using it for sepulture purposes, subject to the reasonable rules and regulations governing the corporation; and it may be said that his property rights more nearly resemble that of an easement than a fee-simple title. But, whatever these rights are, they are property rights, and when violated the owner is as certainly entitled to all the remedies which the law affords, as if he owned a fee simple. The establishment and the maintenance of great cemeteries for the convenience of cities is an absolute necessity. Man naturally desires to provide a suitable place in which to bury his dead, and his reverence and love for his dead demands the establishment of a place where their bodies may repose in peace and dignity; where they will be safe and secure from trespassers, and where he may beautify their graves and mark their last resting place with suitable monuments to preserve their memory from oblivion.

It is a matter of common knowledge that in the principal cemeteries of large cities enormous sums of money are expended in adorning the grounds, in keeping the graves fresh and beautiful, and in erecting monuments upon which to record the virtues of the dead. A lot therefore in a cemetery, by whatever title it is held or denominated, is a valuable property, even when measured in money, and we will now examine some of the authorities bearing upon the subject, in order to ascertain what other jurisdictions and the text-writers have held with reference to the rights of lot owners in cemeteries to invoke the process of the law to restrain or remedy the invasion of their property rights. In the case of Roanoke Cemetery Co. v. Goodwin, 101 Va 605, 44 S.E. 769, it was held that a purchaser of a lot in a cemetery, while he has the exclusive right to its use for the purpose of sepulture, holds it subject to the reasonable regulations and bylaws of the corporations, and that he cannot exercise that absolute dominion over it, or with regard to it, as can the owner in fee simple in regard to his property. In the case of Wright v. Hollywood...