Hughes v. Cobb County, S94A0354
| Decision Date | 04 April 1994 |
| Docket Number | No. S94A0354,S94A0354 |
| Citation | 264 Ga. 128,441 S.E.2d 406 |
| Parties | HUGHES et al. v. COBB COUNTY et al. |
| Court | Georgia Supreme Court |
William E. Turnipseed, Savell & Williams, John M. Sheftall, Long, Aldridge & Norman, Atlanta, for Hughes et al.
Garvis L. Sams, Jr., Marietta, Carol A. Callaway, Asst. Atty. Gen., Atlanta, Thomas J. Charron, Dist. Atty., Joel L. Larkin, Garvis L. Sams, Jr., P.C., Marietta, Michael J. Bowers, Atty. Gen., Atlanta, for Cobb County et al.
In September of 1988, Appellee C.V. Nalley III purchased a 12.196 acre tract in Cobb County. Located on that tract is a 0.196 acre cemetery that contains approximately 52 grave sites, 11 with inscriptions. In January of 1992, Nalley applied for a permit to remove and relocate the cemetery pursuant to OCGA § 36-72-5 and Chapter 3-8.5 of the Code of Cobb County. Pursuant to OCGA §§ 36-72-5(4) and 36-72-6, Nalley identified and notified the descendants of those buried in the cemetery, the appellants here, who have since opposed Nalley's permit application.
Nalley's application was first reviewed by the Cobb County Cemetery Preservation Commission 1 which, after a public hearing, submitted a report recommending that the application be denied. The application was then reviewed by the Cobb County Board of Commissioners, which also held a public hearing. At this hearing Nalley modified the plan by proposing a second possible site for the relocated cemetery. Nalley claims that this alternative site was proposed in response to reservations expressed by the Cemetery Preservation Commission. The Cobb County Board of Commissioners approved the modified plan presented by Nalley and granted a permit.
In response to the Cobb County Board of Commissioners' action, the descendants filed an appeal (naming Cobb County and Nalley as parties) in Cobb County Superior Court pursuant to OCGA § 36-72-11. The superior court judge conducted an evidentiary hearing of the descendants' de novo appeal and found that the cemetery is a "family/neighborhood" cemetery, that Nalley is the title owner of the property and that Nalley's application met the mitigation and notice requirements of OCGA § 36-72-5(4) and (5). The court further held that it was appropriate to move the cemetery and that relocation would preserve rather than destroy the cemetery's cultural and historical significance to Cobb County.
1. The descendants argue that the court erred when it found that the cemetery was a family/neighborhood cemetery and that Nalley held title to the cemetery. The law recognizes two kinds of cemeteries, public and private. A public cemetery is one which has been "dedicated" 2 to the community at large. In contrast, a private cemetery is one where the land has been used for burial by the landowner, or with the landowner's permission, and use has been restricted by the landowner to relatives or some other portion of the public (e.g. neighbors and friends) but not the community at large. See generally 75 ALR2d 591, 592 § 1 (1961).
In Georgia, an owner of land who dedicates that land to public use is prohibited from afterwards appropriating the land to private purposes if exercise of those private rights would materially affect the accommodation of the public rights in the property. OCGA § 44-5-230. Under OCGA § 36-72-5 an applicant for a permit to move a cemetery must submit evidence of ownership of the land in the form of a title opinion. Nalley presented such an opinion. The descendants argue that the attorney who provided the title opinion did not consider whether the original owner had made a dedication and further argue that their evidence of dedication is so overwhelming that the trial court erred in ruling that no dedication occurred. 3
The court conducted a de novo bench trial of the descendants' appeal from the Board of Commissioners' decision to grant Nalley's permit application. 4 The court found that the evidence showed "no specific dedication of this property by any of its owners for use as a public cemetery" and that the evidence did "not suggest that this cemetery was used by the public at large as a burial place." There was at least some evidence to support this finding. 5
The descendants appear to believe that because they presented testimony from several witnesses while Nalley used "only one witness" whose testimony they characterize as shallow and self-serving, by virtue of their own assessment of the quantity and quality of their evidence they are entitled to a judgment in their favor. The descendants ask this court to re-weigh the evidence and re-judge the credibility of the witnesses. The finder of fact, in this case the superior court judge, is the final arbiter of the weight of the evidence and the credibility of witnesses. The judge's findings of fact will not be disturbed on appeal as long as there is any evidence to support those findings. OCGA § 9-11-52(a). As the descendants concede, there was at least some evidence to support the judge's findings and this court...
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