Polhemus v. Daly

• Decision Date: 03 May 1927
• Docket Number: Mo. 19911.
• Citation: 296 S.W. 442
• Parties: POLHEMUS et al. v. DALY.
• Court: Missouri Court of Appeals

296 S.W. 442

POLHEMUS et al. v. DALY.

Mo. 19911.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Rehearing Denied June 7, 1927.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

"Not to be officially published."

Suit by Frank Polhemus and others against John P. Daly. From a judgment for plaintiffs, defendant appeals. Affirmed.

Gillespie & Dempsey, of St. Louis, for appellant.

Chas. H. Richeson, of Petosi, for respondents.

DAUES, P. J.

This is an injunction suit begun by the respondents in the Washington county circuit court to enjoin the appellant, a Catholic priest, as pastor of his church in the town of Old Mines, in that county, from the desecration of the cemetery adjacent to the church and used in connection therewith as a burial ground for the dead of that faith. The bill charges that the appellant would go into the graveyard with a horse and sled, and would dig in and upon the graves to recover baryta, commonly called "tiff," for the purpose of sale, and that in driving the horse and sled over the graves and in such digging would cause the identity of the graves to lie obliterated. It is further charged that appellant used the cemetery for the pasturing of sheep and cows, and would burn the vegetation in same, and by such means would kill the flowers which had been planted by plaintiffs and others on the graves therein. The bill prays for an injunction against a continuance of these acts.

The answer is a general denial, and then alleges that appellant is pastor of the church, and as such had a right to clean the graveyard in the manner that he did, and that the tiff was removed to prevent it from sinking into the decayed caskets. It is further averred, as a justification of his acts, that the pasturing was done to clean the cemetery, and that it was customary to clean graveyards by burning the dry vegetation. It is then denied that the cemetery is a public burial ground, but it is a private burial ground, and further denied that the respondents contributed to the upkeep of same.

The reply is a general denial.

The chancellor found for respondents in part made the injunction permanent as to the digging and removing of tiff from over any grave lot, and dissolved the temporary injunction as to the burning and pasturing. The defendant below has duly perfected his appeal.

It is not necessary to set out the proof in minute detail. Suffice to say that the respondents adduced evidence on all the averments of the bill, but the chancellor was not satisfied with respondents' proof on the charge of pasturing and burning in the graveyard, and did not grant a decree to stop that practice, but did find that appellant, through his agents, removed tiff from on and over the graves therein, being the graves of deceased relatives of the petitioners and others, and decreed that the temporary injunction should be made permanent to prevent the appellant and his agent from digging and removing tiff "from over, or in, any grave or grave lot or passageway in said graveyard" (excepting in digging new graves).

Now, as to the proof pro and con with reference to the digging of tiff from graves and grave lots or passageways in same: There is no dispute but what the cemetery adjoins the church, and was used for parishioners and others of the Catholic faith generally in that neighborhood, and had so been used for a century.

Respondent Polhemus testified that he had lived in Old Mines for 40 years; that his dead wife was buried in this cemetery, and that he visited the spot; that he was a member of the parish, and that up to April 17, 1923—the time complained of in the petition being March 1923—he found the graves that had been damaged; that he noticed that one tombstone had been turned over "where they were trying to get some tiff out of the ground;" that many of the graves had holes dug in them; that about that time he saw a boy there with a horse and sled who had been driving the horse and dragging the sled over graves; that he could see the horse's tracks; that he saw more than one boy, one of whom was "staying" with the priest; that he could clearly see what they had been doing. Describing the damage, he said the graves were dragged over and gouged into; that from the holes in the graves he could see that a pick or some other digging instrument had been used; that the holes were from 6 to 8 inches deep; that vegetation had been mashed down and dragged over; and that shrubbery and plants had been destroyed thereby.

Witness Bequette, who lives near the graveyard, testified that he had occasion during March, 1923, to visit the cemetery; that there was evidence of a general digging about the cemetery, and that one grave had been dug into about 12 or 14 inches and about 2 feet long, and had been left that way; that next to the grave "there was about a couple hundred pounds of tiff piled up beside it; that he saw two boys and the appellant there at the time; and that he remonstrated with the appellant about this matter at that time. This witness had his father, mother, two sisters, and three children buried there. On cross-examination, witness admitted that he saw only two graves that had holes dug in them, but that he did not go over the cemetery to examine all of the graves. He was a member of that parish.

Witness Coleman, who attended the church and had relatives buried in the cemetery, testified that he saw the horse and sled being used in carrying off tiff from the cemetery in March, 1923, and that he remonstrated with the boys about using the horse and sled in the cemetery.

Witness Thebeau, whose testimony is very similar to the preceding witness, said he saw the boys in the cemetery with a pick and a basket, and that several graves had been dug up 5 or 6 Inches deep; one hole being about 10 inches deep.

Witness Vilmer, likewise connected with the parish, and who had relatives buried in the cemetery, said that at the time alleged in the petition he saw the boys who were dragging tiff with a horse and sled over the graves, and that they had collected about 500 or 600 pounds of tiff.

Witness Mary Boyer testified for respondents that her family had some grass tiff on her son's grave; that the grass tiff had been removed, but not taken away, but that she could observe that an effort had been made to tear down the mound; that a pick had been used to dig down into a certain grave, and that holes had been left in same; that she did not count the number of graves which had been mutilated.

Fifteen witnesses testified for respondents, and, while the testimony varied, of course, so far as the removal of tiff is concerned, it is about as already set forth.

Appellant produced eleven witnesses, and from these and from the cross-examination of some of respondents' witnesses there was evidence tending to show that tiff was often found in digging newly made graves and the mineral thrown on the surface and piled up for the purpose of disposing of same for sale, being moved from the cemetery periodically.

Appellant's evidence is to the effect that he is pastor of the church; that the title of the church is in the archbishop of the diocese; that as pastor he is charged with the duty of keeping the cemetery in good condition; that he sent the boys into the cemetery to clean up the loose tiff lying about, and especially to take away the tiff left out of newly made graves; that he...