Norwalk Vault Co. of Bridgeport, Inc. v. Mountain Grove Cemetery Ass'n

• Decision Date: 20 May 1980
• Citation: 180 Conn. 680,433 A.2d 979
• Court: Connecticut Supreme Court
• Parties: The NORWALK VAULT COMPANY OF BRIDGEPORT, INC., et al. v. The MOUNTAIN GROVE CEMETERY ASSOCIATION. Donald BROWNE ex rel. The NORWALK VAULT COMPANY OF BRIDGEPORT, INC., et al. v. The MOUNTAIN GROVE CEMETERY ASSOCIATION.

Page 979

433 A.2d 979

180 Conn. 680

The NORWALK VAULT COMPANY OF BRIDGEPORT, INC., et al. v. The MOUNTAIN GROVE CEMETERY ASSOCIATION.

Donald BROWNE ex rel. The NORWALK VAULT COMPANY OF

BRIDGEPORT, INC., et al. v. The MOUNTAIN GROVE CEMETERY ASSOCIATION.

Supreme Court of Connecticut.

Argued Jan. 16, 1980.

Decided May 20, 1980.

Lawrence J. Merly, Bridgeport, with whom was Richard T. Meehan, Jr., Bridgeport, for appellants (plaintiffs in each case).

Dion W. Moore, Bridgeport, with whom was Frederick L. Comley, Bridgeport, for appellee (defendant in each case).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

COTTER, Chief Justice.

These consolidated cases were instituted on behalf of eight vault manufacturing companies, a burial vault manufacturers' association, six funeral directors, two funeral director associations, and two private individuals who own plots located in the cemetery property owned by the defendant Mountain Grove Cemetery Association (hereinafter Mountain Grove). The complaints in both actions contain identical allegations that the defendant is engaged in the sale, for profit, of burial vaults and that such activity is "unlawful, unreasonable and against public policy," for the alleged reasons, inter alia, that the defendant's activity is prohibited by General Statutes § 20-230 and is beyond its corporate charter. In the first action, the plaintiffs seek money damages and an injunction enjoining any further sales of burial vaults by the defendant. The second action is in the nature of quo warranto challenging the authority under which the defendant claims the propriety of its burial vault sales activity and seeking the forfeiture of the defendant's charter and the dissolution of its corporate existence. ¹ From the judgment rendered in favor of the defendant on the complaint in each of these cases, the plaintiffs have appealed. ²

Mountain Grove was organized in 1849 as a private enterprise for cemetery purposes. In 1889, it was organized, by Special Act No. 231, as a nonstock corporation, open to the public, with the "right to acquire and to hold lands for the purpose of a cemetery." 10 Special Acts 1049, No. 231. The cemetery now has in excess of 125 acres of land, seventeen of which remain unused, and possesses the right of eminent domain to acquire additional land. General Statutes §§ 19-147 and 48-18. Mountain Grove receives its gross income from various sources including the sale of lots, tent fees, charges for digging graves, securities, operation of a crematory, the sale of crypts or niches in its mausoleum and columbarium and the sale of urns, mausoleum face plates, flowers and bronze markers.

Although not required by statute, cemetery regulations require that all caskets be enclosed in a nonperishable vault or casket container for earth interment. See Dries v. Charles Evans Cemetery Co., 109 Pa.Super. 498, 167 A. 237 (cemetery regulation providing that vaults required for burial be made of either brick, stone, or concrete held to be a reasonable exercise of the cemetery's charter powers). The use of burial vaults prevents the collapse of the grave upon the decomposition of the body and the casket and thus enables the cemetery to properly maintain the lots and preserve the aesthetic quality of the grounds. Burial vaults are usually acquired through funeral directors who show prospective purchasers samples, or mock-ups, of various vault styles from which to choose, and when the decision is made as to which vault is to be utilized, the funeral director contacts the vault manufacturer and places an order for that vault. This transaction is treated as if the funeral director sold the vault inasmuch as the director makes a profit and must pay sales tax on that sale. The manufacturer then delivers the vault to the cemetery for installation in the grave prior to the funeral service. Following the service, the casket is lowered into the vault which is then covered and usually sealed. Burial vaults have not always been obtained through funeral directors but are sometimes sold directly to cemeteries and, in fact, in the 1920s, Mountain Grove itself sold vaults.

In 1975, Mountain Grove sought to offer an alternative form of below ground burial utilizing a vault called a double depth lawn crypt. A double depth lawn crypt is a single unit in which two caskets are placed, one on top of the other, separated by a shelf. ³ In the traditional single vault burial, only one casket may be placed in a vault. Bids were sought from various vault manufacturers, including the plaintiff Norwalk Vault Company of Bridgeport, Inc., (hereinafter Norwalk Vault) for the purchase and installation of double depth lawn crypts at Mountain Grove. Alexander Pirozzoli, president of Norwalk Vault, purportedly expressing the opinion of the three plaintiff associations, declined to offer a bid as requested by Mountain Grove stating that, in his belief, it would be "contrary to existing law for cemeteries to engage in the sale of funeral merchandise." ⁴

Mountain Grove eventually purchased 128 double depth crypts from a vault manufacturer in Pennsylvania which were all installed en masse. The installation was accomplished by excavating an area of approximately one acre and constructing therein a drainage system of pipes and washed gravel. Along the perimeter of the excavated area, organic tile was installed. This drainage system is necessary to remove the water that would seep into the crypt while the crypt remains unsealed until both caskets are placed in it. There is a vent at the bottom of the crypt through which the water flows out of the crypt and is carried away by the drainage system. The crypts were installed side by side on top of the washed gravel, one and one-half inches apart, so as to tie them into the drainage system, and the area was then backfilled with topsoil and reseeded. For a burial utilizing a double depth crypt, the cemetery needs only to remove eighteen inches of soil above the crypt, lift the cover of the crypt, and the interior shelf if the lower level is going to be occupied, and lower the casket into the crypt. By the time of the trial, Mountain Grove had sold seventeen or eighteen graves containing double depth crypts and the profits from those sales had been placed in a fund for the maintenance of the cemetery.

The plaintiffs contend that a double depth burial crypt is personal property which is not necessary or proper for the operation and maintenance of the cemetery and that the sale of such crypts is therefore not within the mandate of Mountain Grove's charter ⁵ and in violation of General Statutes § 20-230. The defendant maintains that the crypt is affixed to the realty and that only the use of the space within the crypt is conveyed to the lot owner which conveyance is authorized by its charter. We agree with the conclusion of the trial court that the double depth burial crypts, by reason of their annexation to the realty, had, upon their installation, become fixtures and that the conveyance of a gravesite containing a crypt was within Mountain Grove's power to hold and convey cemetery property.

As noted previously, Mountain Grove's charter authorizes it to "acquire and to hold lands for the purpose of a cemetery." The plaintiffs recognize that if deemed a fixture, a double depth burial crypt installed in the grave is conveyed as a part of the conveyance of that burial plot which is clearly within the mandate of the defendant's charter. Unable to challenge the trial court's conclusion on the basis of the method of installation of the crypts, the plaintiffs vigorously attack the conclusion that the crypts were intended to become permanently annexed to the realty.

The character of the property being conveyed to a lot holder is to be ascertained as of the date when it is annexed to the realty. Cleaveland v. Gabriel, 149 Conn. 388, 391, 180 A.2d 749; Lesser v. Bridgeport-City Trust Co., 124 Conn. 59, 63, 198 A. 252. Whether these crypts may be characterized as personal property in other situations, as, for example, in a dispute between a vault manufacturer and a funeral director or between a funeral director and a vault purchaser, is irrelevant in the present case. The relevant issue is the nature of the property being conveyed to a lot holder.

To constitute a fixture, it is essential "that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which (the realty) was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article." Capen v. Peckham, 35 Conn. 88, 94; Merritt-Chapman & Scott Corporation v. Mauro, 171 Conn. 177, 182, 368 A.2d 44; Giuliano Construction Co. v. Simmons, 147 Conn. 441, 443, 162 A.2d 511; Tolles v. Winton, 63 Conn. 440, 28 A. 542; Barnes v. Burt, 38 Conn. 541; Alvord Carriage Mfg. Co. v. Gleason, 36 Conn. 86. The plaintiffs argue that all burials are intended to be permanent but the vault is not therefore transformed into a fixture simply by a reason of the burial since industry custom permits the removal of a sealed single depth vault upon a disinterment. Whatever may be the lot holder's intent regarding the removal of single depth vaults is not applicable to double depth crypts. Even were we to consider the plaintiffs' representation as to the custom of the industry, which was not found by the trial court, that custom is irrelevant in view of the trial court's finding that if disinterment of a deceased buried in a double depth crypt becomes necessary or desirable, the casket will be removed from the crypt and placed in another vault for transportation. The...