Humphrey v. Board of Trustees of M.E. Church

• Decision Date: 10 November 1891
• Citation: Humphrey v. Board of Trustees of M.E. Church, 13 S.E. 793, 109 N.C. 132 (N.C. 1891)
• Parties: Humphrey et al. v. Board of Trustees of M. E. Church.
• Court: North Carolina Supreme Court

13 S.E. 793

109 N.C. 132

Humphrey et al. v. Board of Trustees of M. E. Church.

Supreme Court of North Carolina

November 10, 1891

Appeal from superior court, New Hanover county; Jesse F. Graves Judge.

Action by H. W. Humphrey and others against trustees of Methodist Episcopal Church for damage in removing the remains of plaintiffs' father from its cemetery.From a judgment for defendant, and refusal to grant a new trial, plaintiffs appeal.Affirmed.

Statement by the Court.The plaintiffs proposed these issues: (1) Did ancestors of plaintiffs purchase from the defendant corporation the vault described in the pleadings?(2) Did the defendant corporation convey by deed to the ancestors of plaintiffs the property described in the pleadings?(3) How long have the plaintiffs, and those under whom the plaintiffs claim, been in the possession of said vault, and the land on which it was built, and used the same as a place of interment?(4) Has such use given to the plaintiffs an easement in the lands of defendant corporation over which said vault was constructed?(5) Did the defendant corporation, by its agents, enter upon and tear down said vault, against the will of the plaintiffs, and without a license from the plaintiffs?The defendant, before the issues were settled, admitted that the plaintiffs were the heirs at law of Bryan L. Koonce; that defendant was a corporation, and that by its proper officers it had executed a paper writing which had been duly registered in 1854, whereby it acknowledges the receipt of $100 from Bryan L. Koonce and his heirs, in full payment for one vault constructed in the burying-ground back of the brick church on the corner of Front and Walnut streets, in the town of Wilmington, and numbered 21, the numbers commencing with 1 on Walnut street extending northwardly successively to 24; the said Bryan L Koonce, his heirs, administrators, and assigns, to have full and exclusive right to inter in said vault as long as it should be used for the purpose of interment, and have free and perpetual privilege of entering upon the church land for that purpose.The court was of opinion that an easement was granted to Bryan L. Koonce which descended to plaintiffs, his admitted heirs.There seemed to the court that there was no necessity for the first, second, third, and fourth issues proposed by the plaintiffs; declined to submit them to the jury; and, not being satisfied with form of the fifth issue it was not submitted in the precise words asked for by plaintiffs.The court settled these issues: (1) Did the defendant corporation, by its agents or servants, wrongfully tear down and destroy said vault?(2) What amount of damages have plaintiffs sustained thereby?And plaintiffs excepted.

There was much evidence offered by plaintiffs tending to show that the corporation desired to erect a church building at some other point in the city of Wilmington, and to change the burying-ground, and with that purpose agents of defendant were requested to treat with plaintiffs for the cession of their rights of property in said vault.(The judge did not wish to incumber the case unnecessarily, and did not think it material to set out the evidence in detail, but directed that if appellant desired, at the risk of costs, to have the letters set out in his statement go up, the clerk might copy them as a part of the case.)There was evidence that Bryan L. Koonce was buried in that vault, and this was not denied.There was evidence tending to show that the other vaults had been removed, and the remains interred in them removed, by the defendant or friends of the deceased; and that the remains of Bryan L. Koonce were removed without the consent of plaintiffs, and that the remains had been removed against their will; and there was testimony as to the costs incurred by the plaintiffs by reason of the removal, and that the vault had been torn down without their consent.The defendant admitted that the vault had been opened, and the remains of the deceased, Byran L. Koonce, had been removed; and offered evidence tending to show that the vault had been opened, and the remains removed, with the consent of plaintiffs, and that one of plaintiffs was present and assisted in removal.The defendant offered in evidence the act of general assembly in relation to the town of Wilmington, 1854-55, (charter,) and the ordinances of the city of Wilmington passed June 11, 1858, and April, 1861, prohibiting interments within certain bounds, and there was testimony to show that the vault was inside the boundary named in the ordinances in which interments were prohibited.The plaintiffs asked the court to instruct the jury "that, if the plaintiffs removed said remains from the said vault involuntarily, the plaintiffs are entitled to recover."This was refused, and plaintiffs excepted.The plaintiffs asked the court to further instruct the jury that, if the plaintiffs removed said remains from said vault influenced by the promises or threats of the defendant in making such said removal, the plaintiffs are entitled to recover; and this was refused, and the plaintiffs excepted.

The court instructed the jury: "The deed or paper writing made by the defendant to Bryan L. Koonce and his heirs is sufficient in form, and passed by grant an easement to use the land described, a vault for burial, which descended to his heirs, the plaintiffs.That easement became an inherent right, which the defendant was bound to recognize.But although the grant was an executed contract, the right of the public is superior to the right of any private person; and where there arises a public necessity for it on account of public convenience, or to protect public health, the law allows private rights to be subjected to such restrictions as are for the common good, so that if the issue read, purporting to be acts of the general assembly, were really passed and became law, they conferred power on the proper authorities of the city of Wilmington to pass ordinances to regulate the burial of the dead in the city; and if you find that the ordinances offered in evidence have been adopted by the proper authority, and if you find that the vault described in this action was in the boundaries in which burials were prohibited, then the...