Mitchell v. Thorne

• Decision Date: 01 October 1892
• Citation: 32 N.E. 10,134 N.Y. 536
• Parties: MITCHELL et al. v. THORNE.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 536

32 N.E. 10

MITCHELL et al.

v.THORNE.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, second department.

Action by Charles T. Mitchell, Sarah O. Chamber, and Margaret J. Mcilvane against Mary A. W. Thorne to restrain defendant from destroying a private burial ground. The special term sustained a demurrer to the complaint. From ajudgment of the general term (10 N. Y. Supp. 682) reversing the special term, defendant appeals. Affirmed.

John M. Perry, for appellant.

A. N. Weller, for respondents.

FOLLETT, C. J.

It is alleged in the complaint that the father of the plaintiffs, together with his brothers and sisters, owned as tenants in common a farm of 200 acres, a small portion of which had been laid out and inclosed as a family burial ground, wherein the ancestors and collateral relatives of the plaintiffs have been buried from time to time, and their graves marked by the usual mounds and appropriate memorial stones. It is further alleged that these theants conveyed the farm to R. V. W. Thorne, by a deed which contains the following language: ‘Excepting and reserving the right of interment in the ground laid off for that purpose in the land hereby conveyed, and also a right of way to the same, to all the grantors of this deed, and to their heir or heirs, forever.’ It is further alleged ‘that plaintiffs' said father and all the grantors in said deed to the said R. V. W. Thorne are new deceased, and the easement or right of family interment or burial reserved in said farm or land has descended to plaintiffs, as heirs at law of the grantors in said deed.’ It is also averred that the defendant is the owner and in possession of the farm, subject to said reservation and exception, under mesne conveyances, deriving her title ultimately from said R. V. W. Thorne, and that she has removed a part of the fence inclosing the burial ground, destroyed some of the gravestones marking the graves of the ancestors and relatives of the plaintiffs, graded away the mounds of the graves, and obliterated all traces of them, and refuses a right of way to the plaintiffs to and from said ground, and threatens, by grading and leveling it, to destroy said burial place. The plaintiffs demand a judgment restraining the defendant from removing the gravestones, grading the grounds, destroying and obliterating the graves, and also for damages. To this complaint the defendant demurred, on the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that there is a defect of parties, because it is not alleged that all of the heirs of all of the grantors in whose favor the reservation hereinbefore mentioned was made are plaintiffs or defendants.

The second ground of demurrer, requiring but little consideration, may well be first determined. When a demurrer to a complaint is based on the sixth ground specified in the 488th section of the Code of Civil Procedure, ‘that there is a defect in parties plaintiff or defendant,’ the particular defect relied on must be pointed out specifically by the demurrer. Code Civil Proc. § 490; Dodge v. Colby, 108 N. Y. 453, 15 N. E. Rep. 703; Story, Eq. Pl. §§ 236, 238, 543. The only defect under this subdivision pointed out by the demurrer is ‘that the heirs at law of the father of the plaintiffs and of the other grantors in the deed to R. V. W. Thorne, mentioned in the complaint, are not, except the plaintiffs herein themselves, made parties plaintiff nor parties defendant.’ The answer to this ground of demurrer is that it does not appear on the face of the complaint that the father of the plaintiffs and his brothers and sisters, or any one of them, left heirs other than the plaintiffs. A demurrer to a complaint can be interposed only for objections appearing on its face. Code Civil Proc. § 488; Haines v. Hollister, 64 N. Y. 1; Story, Eq. Pl. §§ 236, 238, 543.

The first ground of demurrer remains to be considered. It has been decided many times, and frequently asserted by text writers, that the heirs of a decedent, at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or removes it, or by an injunction may restrain one who without right threatens to injure or remove it, and this, though the title to the ground wherein the grave is be not in the plaintiff, but in another. Frances v. Ley, Cro. Jac. 366; Corven v. Pym, 12 Coke, 105; Spooner v. Brewster, 10 Moore, 494, 3 Bing. 136, 2 Car. & P. 34; In re Brick Presbyterian Church, 3 Edw. Ch. 155-168; Matthews v. Jeffrey, 6 Q. B. Div. 290; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227; Beatty v. Kurtz, 2 Pet. 566;Snyder v. Snyder, 60 How. Pr. 368; 1 Rolle, Abr. 625; 4 Bac. Abr. tit. ‘Heir and Ancestor,’ 163; 2 Com. Dig. tit. ‘Cemetery,’ 305; 1 Co. Litt. 18 b; 3 Co. Just. 202 et seq.; 2 Bl. Comm. 428; 2 Steph. Comm. (8th Ed.) 220; 1 Williams, Ex'rs, (7th Amer. Ed.) 792; Ferard, Fixt. 202. But this rule of law is not quite applicable to this case as stated in the complaint, for it is not alleged that the plaintiffs are the heirs of any of the persons whose graves or monuments have been destroyed, nor is it averred that they are heirs of any of the persons buried in that yard. The word ‘ancestor’ is an ambiguous one, broad enough to include, but not necessarily including, parents, grandparents, and all persons in the ascending line, as far as relationship can be traced. ‘Descendant’ is an antonym of ‘ancestor,’ but is not a synonym of ‘heir.’ It is plain that the allegation that the ancestors of the plaintiffs are buried in this yard is not equivalent to an allegation that the plaintiffs' parents were there buried, or that the plaintiffs are the heirs of the persons there buried. No one is the heir of all of his ancestors. The rights of the heirs of the grantors to protect the graves and monuments in the ground reserved are not to be solely ascertained and limited by the rules defining the rights of heirs of persons buried in church yards and incorporated cemeteries, but must be ascertained from the words of the clause in the deed, aided by the general rules relating to burial places. The right of the tenants in common and of their heirs is called in the grant an ‘exception’ and a ‘reservation,’ the scrivener not seeming to have understood that the words as used are inconsistent. By an exception some portion of the subject of the grant is excluded from the conveyance, and the title to the part so excepted remains in the grantor by virtue of his original title. A reservation creates a new right out of the subject of the grant, and is originated by the conveyance. Stock well v. Couillard, 129 Mass. 231;Langdon v. Mayor, 6 Abb. N. C. 314; 1 Washb. Real Prop. (4th Ed.) 432; 1 Dart, Vend. & P. (6th Ed.) 612. It is recited that ground had then been laid off for interments, and a right of way to and from this...