Hume v. Laurel Hill Cemetery

• Decision Date: 09 October 1905
• Docket Number: 13,457.
• Citation: Hume v. Laurel Hill Cemetery, 142 F. 552 (N.D. Cal. 1905)
• Parties: HUME v. LAUREL HILL CEMETERY et al.
• Court: U.S. District Court — Northern District of California

142 F. 552

HUME v. LAUREL HILL CEMETERY et al.

No. 13,457.

United States Circuit Court, N.D. California.

October 9, 1905

Lloyd &amp Wood and Haven & Haven, for complainant.

Percy V. Long, City Atty., and John S. Partridge, Asst. City Atty. for defendants.

HUNT District Judge.

Complainant brings this action to obtain a writ of injunction against the defendants, enjoining them, during the pendency of the suit and until further order of the court, from enforcing and attempting to carry into effect the provisions of an ordinance, numbered 25, passed by the city council of the city of San Francisco, prohibiting the burial of the dead within the city and county of San Francisco, and from in anywise preventing or interfering with the complainant in the burial of the dead body of Sarah R. Macbeth in a certain burial plot alleged to belong to complainant, and from preventing or attempting to prevent complainant or other lot owners from burying or interring, or causing to be buried or interred, the dead body of any person in the Laurel Hill Cemetery at San Francisco. The complainant is a citizen of California. The Laurel Hill Cemetery is an association. The city and county of San Francisco is a municipal corporation. She also makes defendants the board of supervisors of the city and county of San Francisco, the board of health of the city and county of San Francisco, certain persons who are members of and constitute the board of health of the city and county of San Francisco, and the health officer of said city and county.

Her bill alleges that there was passed and duly approved on April 18, 1859, an act of the Legislative Assembly of the state of California entitled 'An act authorizing the incorporation of rural cemetery associations' (St. 1859, p. 281, c 267), under which it was provided that any number of persons residing in said state, not less than seven, who should desire to form an association for the purpose of procuring and holding lands to be used exclusively for a cemetery or place for the burial of the dead, might meet and proceed to form an association; and it was further provided that a certificate, stating the names of the associates, the number of trustees, and the time of their election, should be made and acknowledged, and filed and recorded in the office of the county clerk of the county in which the cemetery grounds were situated; and that, upon complying with these provisions, the association mentioned should be a body politic and incorporate, in fact and in name, and have certain corporate powers, for instance: to sue and be sued, to purchase, hold, sell, and convey such real and personal estate as the purposes of the incorporation should require, to make by-laws, not inconsistent with the laws of the state, for the organization of the company, the management of the property, the regulation of its affairs, and for carrying on all kinds of business within the object and purposes of the company. The bill alleges that the aforesaid act is now in full force and effect; that after its passage, on April 11, 1867, Nicholas Luning and others met and duly elected officers and proceeded to form an association, which was named the 'Laurel Hill Cemetery,' and did elect trustees, and did make the necessary certificate, and did cause the same to be filed and recorded in the office of the county clerk of the city and county of San Francisco, in which the cemetery grounds of said association were situated; and that since the recording of the certificate the defendant Laurel Hill Cemetery became, and was, and ever since has been, a legally incorporated body. It is alleged that the city and county of San Francisco is a municipal corporation organized and existing under and by virtue of the Constitution and laws of the state of California; that since January 2, 1900, the said city and county of San Francisco has been subject to a charter framed for its government, and adopted in pursuance of the provisions of the Constitution of the state of California; and the defendant board of supervisors of the city and county of San Francisco are, by said charter, vested with the legislative power of said city and county; and the defendants the board of health of the city and county of San Francisco and the health officer of said city and county are vested with the regulation and control of the health of the inhabitants of the said city and county; and that the defendant Schmitz is mayor of the said city and county.

Complainant further shows that, during the year 1853, Nathaniel Gray and his associates were co-owners of a tract of land outside of the corporate limits of the city of San Francisco, and that, in November of 1853, the said Gray and his associate co-owners concluded to devote the said tract of land, which is now occupied as a cemetery by the defendant Laurel Hill Cemetery, to the purposes of a rural cemetery, and thereupon they began to prepare the land for the purposes aforesaid, and did clear the same and grade it and construct roads and avenues, and do all work necessary to fit the said lands for the uses to which it was designed to devote the same, and did continue to prosecute the work until May 30, 1854, upon which day the lands referred to were publicly dedicated to the purposes aforesaid under the name of 'Lone Mountain Cemetery'; that the dedication was of public importance; that a large number of persons were present at the dedication, that the proceedings connected with the dedication ceremonies were published, and that it was generally known that the lands had been set apart and dedicated by the said Gray and his associates for the exclusive purposes of a place for the burial of the dead; that, at the time of the establishment of the said Lone Mountain Cemetery, the same was outside of the corporate limits of the city of San Francisco, and remote from the business part of the said city, distant at least two miles therefrom, and was more than one mile away from any part of the city used for dwellings; that no streets leading from the business or dwelling part of the city to the cemetery had been opened or paved; and that the only way to the cemetery for vehicles was along the street or road leading to the military reservation of the Government of the United States, situated on the shores of the Bay of San Francisco, thence by a road leading from the highway aforesaid to the cemetery, a distance of four miles from the city, which road was kept in repair by the associates aforesaid for the purpose of obtaining access to the said Lone Mountain Cemetery, at which it stopped; that during the occupation and use of the said tract of land for the purpose of the said Lone Mountain Cemetery, very large sums of money were expended in improving the cemetery, constructing walls, monuments and other improvements, in planting, watering, and otherwise caring for grasses, flowers, and shrubbery therein, and the lands were always used exclusively for cemetery purposes; that Gray and his associates continued to improve the property, and expended thereon, over and above the receipts, upwards of $160,000, and, between the time of the establishment of the cemetery and its conveyance to the Laurel Hill Cemetery, they sold to divers persons more than 3,000 lots and plots, many of which have been improved at great expense, and it was notoriously known to the city of San Francisco that such work was being done, and such expenditures were being made in the said cemetery, and for the purposes aforesaid.

Complainant further alleges that on the 26th day of May, 1868, and after the formation and organization of the defendant Laurel Hill Cemetery, Gray and his associates conveyed to the defendant Laurel Hill Cemetery all that part which had been actually appropriated to the purposes of a cemetery; that the grant and conveyance was made upon the condition that the grantee should lay out and divide the same into cemetery lots, and sell the same for cemetery purposes, and carry on the usual business of a rural cemetery; that defendant took possession, and ever since has continued to carry on and conduct the business of a cemetery; that the last above described tract constituted and comprised that portion of the original tract which had been set apart and used for cemetery purposes, and, upon the grant and conveyance aforesaid, all that part of the said original tract which was not included in said conveyance was appropriated to and used for other purposes, and was no longer devoted to the purposes of a cemetery; that afterwards, on the 17th day of May, 1871, the defendant Laurel Hill Cemetery applied to the board of supervisors of the city and county of San Francisco for a grant of the tracts last above described, pursuant to the provisions of an act of the Legislature of the state of California, entitled 'An act to expedite the settlement of land titles in the city and county of San Francisco, and to ratify and confirm the acts and proceedings of certain of the authorities thereof' (St. 1869-70, p. 353, c. 249); that thereafter, on June 23, 1871, after proceedings had been regularly had, the then mayor of the city and county of San Francisco granted to the said defendant the tract of land last above described for a consideration of $24,139.79, which was paid to the treasurer of said city and county; that thereafter, on December 29, 1890, said defendant Laurel Hill Cemetery sold from the western side of said tract of land a portion thereof not required for and not in use for burial purposes, and thereby reduced the size of the cemetery to an area particularly described in the petition, and that defendant has since held, and now holds, the tract specifically described, and uses the same exclusively for cemetery purposes.

Complainant alleges that,...