Jacobus v. Congregation of Children of Israel

• Decision Date: 20 July 1899
• Citation: 33 S.E. 853,107 Ga. 518
• Parties: JACOBUS et al. v. CONGREGATION OF CHILDREN OF ISRAEL.
• Court: Georgia Supreme Court

33 S.E. 853

107 Ga. 518

JACOBUS et al. v. CONGREGATION OF CHILDREN OF ISRAEL.

Supreme Court of Georgia

July 20, 1899

Syllabus by the Court.

1. One who is the owner of the easement of burial in a cemetery lot or who is rightfully in possession of the same, is entitled to recover damages from any one who wrongfully enters upon such lot and disinters the remains of persons buried therein.

2. In a suit for damages for wrongfully disinterring a dead body, if the injury has been wanton and malicious, or is the result of gross negligence or a reckless disregard of the rights of others, equivalent to an intentional violation of them exemplary damages may be awarded, in estimating which the injury to the natural feelings of the plaintiff may be taken into consideration.

3. If a monument or gravestone, which has been erected at a grave, is defaced or removed, after the death of the person who erected it, the heirs at law of the person to whose memory the monument or gravestone was erected may recover damages from the one who injures or removes it.

4. Where a petition sets forth a good cause of action for exemplary damages, and prays that a designated amount, as exemplary damages, be awarded the plaintiff, "as expenses of bringing these proceedings," the words quoted may be treated as surplusage.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by J. E. Jacobus and others against the Congregation of the Children of Israel. Judgment dismissing petition was entered and plaintiffs bring error. Reversed.

Sam. F. Garlington and F. W. Capers, for plaintiffs in error.

C. Henry Cohen and Russell & Rosenfield, for defendant in error.

FISH J.

The defendant in the court below moved to dismiss the plaintiffs' petition upon the ground that no cause of action was set out therein. The court sustained the motion, and the plaintiffs excepted. The petition alleged, in substance, that the three plaintiffs are the children of Jacob Jacobus and his wife, Manahan, who had born unto them two other children, Harold and Irene, both of whom died in infancy. In January, 1856, Jacob Jacobus purchased of the defendant, a corporation, owning and controlling certain burial grounds located in the city cemetery of Augusta, a certain described lot or square in such burial grounds, and paid for the same. This lot or square is inclosed by a row of brick. In 1856 the remains of his infant son, Harold, and in 1858 the remains of his infant daughter, Irene, were interred by him on this lot. Jacob Jacobus died in 1862, and his wife in 1894. The remains of the plaintiffs' brother and sister remained undisturbed from the dates when they were, respectively, buried, until 1895, when the defendant, through its duly appointed and constituted officers, willfully, unlawfully, and without warrant or authority, and without the knowledge of plaintiffs, entered upon such lot, removed the headstones from the two graves, took therefrom the caskets containing the remains of the plaintiffs' brother and sister, opened the caskets, and exposed the contents of the same to the view of people, and then reinterred the remains in an obscure part of the defendant's burial grounds. After removing the headstones and caskets, the defendant sold or gave the lot to another person, and permitted him to bury a body therein. The removal of the bodies of the plaintiffs' brother and sister "to an obscure portion of said burial grounds" was "much to the chagrin, mortification, humiliation, insult, and injury" of the plaintiffs, and in the removal and the acts accompanying the same "a most serious injury has been done" to the plaintiffs, and an insult inflicted upon them, "which money cannot repair and which time cannot eradicate." The petition prayed that the officers of the defendant corporation be directed and commanded to reinter the remains of the plaintiffs' brother and sister in the lot from which they had been removed, "in a grave to be walled and securely cemented, as was the grave in which they formerly reposed," and that "the nominal sum of two hundred and fifty dollars, as exemplary damages, be awarded to *** petitioners, as expenses of bringing these proceedings." At the hearing counsel for the plaintiffs stated that, since the filing of the suit, the defendant had complied with the prayer of the petition in reference to reinterring the remains upon the lot from which they had been removed, "and that suit was proceeding for the collection of the expenses of this suit, including attorney's fees."

1. According to the allegations of the petition, Jacob Jacobus the father of the plaintiffs, purchased the burial lot from the defendant, paid for it, and took possession of it, in the only way that he could, by using it for the purposes for which it was intended,--he buried his dead upon it. He had both the possession and the right of possession, and remained in possession, until his death. At his death the possession and the right of possession were transmitted to his heirs at law. Having once been established, the possession, unless voluntarily relinquished, continued as long as the graves were marked and distinguishable as such, and the cemetery continued to be used. Hook v. Joyce, 94 Ky. 450, 22 S.W. 651; Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565. "The burial of the dead body in a cemetery lot is the only possession, when claimed and known, necessary to ultimately create complete ownership of the easement, so as to render it inheritable; and, so long as gravestones stand, marking the place as burial ground, the possession is actual, adverse, and notorious." Hook v. Joyce, supra. "When one is permitted to bury his dead in a public cemetery, by the express or implied consent of those in control of it, he acquires such a possession in the spot of ground in which the bodies are buried as will entitle him to an action against the owners of the fee or strangers who, without his consent, negligently or wantonly disturb it. This right of possession will continue as long as the cemetery continues to be used." Improvement Co. v. Jenkins, supra. As a general rule, one who purchases and has conveyed to him a lot in a public cemetery does not acquire the fee to the soil, but only the easement or license of burial therein. But, as we have seen, so long as he is in the rightful possession of...