Normandy Consolidated (School) District of St. Louis County v. Harral

• Citation: 286 S.W. 86,315 Mo. 602
• Decision Date: 30 July 1926
• Docket Number: 25474
• Parties: Normandy Consolidated (School) District of St. Louis County and Arthur G. Skelly et al., Appellants, v. Walter E. Harral et al., Trustees for Plymouth Securities Company, and Laurel Hill Cemetery Association and William E. Reasor et al., Directors of Said Association
• Court: United States State Supreme Court of Missouri

286 S.W. 86

315 Mo. 602

Normandy Consolidated (School) District of St. Louis County and Arthur G. Skelly et al., Appellants, v. Walter E. Harral et al., Trustees for Plymouth Securities Company, and Laurel Hill Cemetery Association and William E. Reasor et al., Directors of Said Association

No. 25474

Supreme Court of Missouri

July 30, 1926

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed.

Charles Erd and Alroy S. Phillips for appellants.

(1) Injunction should lie to prevent the location of another cemetery in a locality already having more than is necessary. 29 Cyc. 1225; 11 C. J. 56. (2) The acts of respondents may be enjoined because they are illegal and harm appellants. (a) The common-law trust is illegal and cannot operate the cemetery, because the cemetery is perpetual and the life of the trust is limited by the rule against perpetuities. Dunn on Business Trusts, pp. 24, 28, 32, 33, 415; Sears on Trust Estates (2 Ed.), pp. 173, 176, 196; Perry on Trusts (6 Ed.) pp. 16, 17, 610, 619. (b) The voluntary association is illegal and cannot operate the cemetery, because being unincorporated, it cannot take title thereto. Douthitt v Stinson, 63 Mo. 268; Keith & Perry Coal Co. v Bingham, 97 Mo. 196; Talbert v. Grist, 198 Mo.App. 492. Having no means of keeping up its existence, it cannot take or execute a permanent trust. 40 Cyc. 1053; In re Tichnor, 13 Mich. 44; Dunn on Business Trusts, pp. 32, 33. Being organized for gain, it is not charitable and cannot take and administer the perpetual-care fund, because to do so would violate the rule against perpetuities. 11 C. J. 54, 324; McCarthy v. Jacobs, 123 N. E. (Ill.) 557; Shippee v. Industrial Trust Co., 110 A. (R. I.) 410; Mason v. Library Assn., 237 Ill. 442. (3) In Missouri, the only associations which may own and operate a cemetery and perpetual-care fund are those which are incorporated. Secs. 1080, 1094, 1087, R. S. 1919. (4) Our statutes provide for the organization of cemetery associations with perpetual charters, and for a judicial determination of the public necessity therefor, and respondents should not be permitted to evade the decision thereof against them in the pro forma decree proceedings, to the prejudice of appellants. Secs. 10267, 10265, R. S. 1919; United States v. Lehigh Valley Railroad, 220 U.S. 257. (5) The loss of taxes by appellant school district is alone sufficient to show such peculiar and special damage as to entitle it to maintain this suit. (6) Injunction is a proper remedy to restrain an illegal act causing peculiar damage to a school district or an individual. School District v. Smith, 90 Mo.App. 225; Shelton v. Lenz, 191 Mo.App. 699.

Jourdan & English and Thompson & Thompson for respondents.

(1) A cemetery is not a nuisance per se. 5 Am. & Eng. Ency. Law, 791; Kingsbury v. Flowers, 65 Ala. 479; Lake View v. Rose Hill Cemetery Co., 70 Ill. 191; Begein v. Anderson, 28 Ind. 79; Musgrove v. Catholic Church, 10 La. 431; Humphrey v. Front, 109 N.C. 132; 29 Cyc. 1169; Union Cemetery Assn. v. Kansas City, 252 Mo. 466; 11 C. J. 56; Elliott v. Ferguson, 83 S.W. 56; Payne v. Wayland, 131 Iowa 659; Dunn v. Austin, 77 Tex. 139. (2) Any person can open, own and conduct a cemetery, and it may be incorporated or not. Sec. 1080, R. S. 1919; Stewart v. Coshow, 238 Mo. 673; Shiel v. Walker, 114 Mo.App. 521. (3) The rule against perpetuities is not violated. Stewart v. Coshow, 238 Mo. 673; Schee v. Boone, 243 S.W. 882. (4) A voluntary association can take the title to property in the name of its board of trustees. 25 Am. & Eng. Ency. Law, 1133; Colley v. Wilson, 86 Mo.App. 396; Kuhl v. Meyer, 35 Mo.App. 206; Douthitt v. Stinson, 73 Mo. 199; Kuhl v. Meyer, 42 Mo.App. 474; White v. Rice, 112 Mich. 403; Troy Factory v. Corning, 45 Barb. (N. Y.) 231; Liggett v. Lodd, 17 Ore. 89; Crawford v. Gross, 140 Pa. St. 297. (5) The trustees of the Laurel Hill Cemetery Association, a voluntary association, can receive gifts and bequests to be used as a perpetual-care fund. Sec. 1094, R. S. 1919. (6) Cemeteries are not only a nuisance per se, but are expressly recognized by the laws of Missouri. Sec. 1080, R. S. 1919. (7) A cemetery cannot be declared a nuisance on the ground that it is offensive to the esthetic sense or that it does not appeal to the fancy, delicacy or fastidiousness of anyone. Sutton v. Finlcy Cemetery Assn., 270 Ill. 1; Monk v. Packard, 71 Me. 309. (8) It is no ground to declare a cemetery a nuisance on the theory that other property in the neighborhood may be injured or depreciated in value. 29 Cyc. 1169; Elliott v. Ferguson, 83 S.W. 56; Dunn v. Austin, 77 Tex. 139. (9) To enjoin a nuisance the bill must make it appear that plaintiff has a clear right to the relief sought. It must charge that the acts complained of are a nuisance, show all matters requisite to complainant's right to the relief asked, and defendant's liability for the injury. Averments of mere conclusions are insufficient. And so, where the thing complained of is not a per se nuisance, the facts which make it such must be averred, and a mere averment that it is or will be a nuisance is not sufficient. 29 Cyc. 1241; Thebeaut v. Canova, 11 Fla. 143; Begein v. Anderson, 28 Ind. 79; Adams v. Michael, 38 Md. 123; Dunn v. Austin, 77 Tex. 139; Elliott v. Ferguson, 83 S.W. 56. (10) While a cemetery is not a nuisance per se, it may, of course, like anything else, become a nuisance if not properly managed, used, handled or employed, but in a bill asking to have a cemetery enjoined, since it is not a nuisance per se, the facts must be stated in detail, from which the court can find that it is a nuisance, before a petition for injunction will state a cause of action. The detailed facts must be stated, and not mere conclusions of fact. McDonough v. Robbins, 60 Mo.App. 156; Kingsbury v. Flowers, 65 Ala. 479; Begein v. City of Anderson, 28 Ind. 79; Holbrook v. Morrison, 214 Mass. 249; Fallon v. Shilling, 29 Kan. 294. (11) One has a right to use property for lawful purposes. State ex rel. v. McKelvey, 301 Mo. 1; City of St. Louis v. Evraiff, 301 Mo. 231.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

This suit was brought in the Circuit Court of St. Louis County, and the venue changed to Audrain County.

The judgment appealed from was entered upon a demurrer to plaintiff's petition. The petition is somewhat long, but the questions raised can best be understood only by setting it out. Omitting description of the land in question, which it is said, includes 179 acres, it is as follows:

"1. Plaintiffs state that at all times hereinafter mentioned plaintiff Normandy Consolidated (School) District was and still is a corporation duly organized and existing under the laws of Missouri relating to consolidated public schools having the power to sue and be sued as such, and owning and conducting public common and high schools, and exercising the other powers provided by law for such school districts within a public school district in St. Louis County, Missouri, commonly known as the Normandy Consolidated School District; and that plaintiffs Arthur G. Skelly, Dr. J. B. Thurman, T. Walter Hardy, R. B. Cornwall, Oliver G. Hanson and Sam B. Coles at all said times were and still are assessed taxpaying citizens owning real and personal property in said school district, and residents thereof, and comprise all of the members of the school board of said district, and as such have an interest in the subject-matter of this action.

"2. Plaintiffs further state that at all of said times defendants Walter E. Harral, M. Curry Giles and William E. Reasor were and still are the trustees of the Plymouth Securities Company, a commonlaw trust, organized and in business for profit as hereinafter more particularly described, and that at all said times defendants Walter E. Harral, M. Curry Giles, William E. Reasor, O. B. Bottorff and H. A. Schneider were and still are the sole members of the Laurel Hill Cemetery Association, a voluntary association, organized and in business for profit as hereinafter more particularly described, and constitute the board of trustees of said association.

"And for their cause of action plaintiffs state as follows:

"3. Some time prior to July 3, 1923, defendants formed and undertook to carry out a plan of acquiring title to a large and valuable tract of land in said school district, and for profit to engage in the business of converting the same into a cemetery, selling the burial lots therein at a large profit, and of operating the same as a cemetery for profit.

"4. And in pursuance of said plan, some time prior to July 3, 1923, defendant Schneider acquired the fee-simple title to the following-described real estate, situated in said school district, in the County of St. Louis and State of Missouri, of the value of more than $ 200,000, to-wit: [Then follows description.]

"5. In pursuance of said plan, on July 3, 1923, defendants Harral, Giles, Reasor, Bottorff and Schneider formed themselves into a voluntary association for the purpose of obtaining a pro forma decree of incorporation for an association under articles of agreement executed by said defendants on said day. Said articles provided that the association should be known as the Laurel Hill Cemetery Association, located in St. Louis County Missouri, with a perpetual term of existence, and that its purposes were to provide and maintain in said county a cemetery for the burial of white human remains, to acquire, hold and own such real and personal property as may be proper in the establishment, improvement, management and maintenance of such cemetery, and to take and hold any gift, devise or bequest and to apply the same, or the income thereof, to the maintenance or improvement of such cemetery, its lots, walks, drives,...