Sherrard v. Henry

• Decision Date: 22 March 1921
• Docket Number: (No. 4072.)
• Citation: 106 S.E. 705
• Parties: SHERRARD. v. HENRY.
• Court: West Virginia Supreme Court

106 S.E. 705

SHERRARD.

v.HENRY.

(No. 4072.)

Supreme Court of Appeals of West Virginia.

March 22, 1921.

(Syllabus by the Court.)

Appeal from Circuit Court, Morgan County.

Suit by Alvernon Sherrard against Nora Henry for an injunction, with cross-bill by defendant. Decree for complainant, and defendant appeals. Reversed and rendered.

A. C. Mclntire, of Martinsburg, and G. Mclntire-Weaver, of Berkely Springs, for appellant.

Allen B. Noll, of Martinsburg, and Luttrell & Rogers, for appellee.

RITZ, P. Plaintiff brought this suit for the purpose of enjoining the defendant from removing the body of her uncle from a burial plot in a cemetery in Oakland, in Morgan county. Prom a decree perpetuating the injunction and refusing the defendant the relief prayed for in her cross-bill answer, the defendant prosecutes this appeal.

It appears that many years ago there was conveyed to certain trustees for the Methodist Church a tract of land for religious purposes. upon a part of this land was erected a church building in which has been conducted religious services, and another part of the land was set apart as a "burial ground. It appears that this part was inclosed by a fence. No charge was made for lots in this cemetery; it being the uniform and unbroken custom since it was set apart and dedicated for burial purposes for those desiring to bury their dead therein to select a lot for that purpose, and to indicate such selection by marking such lot, and by cleaning it up and keeping it in presentable condition. Both parties to this suit agree as to this phase of the case, and both of them claim the right to the lot in which plaintiff's uncle was buried, by reason Of the same having been preempted in the manner above Indicated. The plaintiff contends that her grandfather, Dr. B. E. Shockey, selected a row, as she calls it, in this cemetery for the burial of members of his family and their close relatives, and that this row includes the lot wherein her uncle was buried. The defendant, on the other hand, contends that she, in the year 1893, selected a square in this cemetery for the burial of her dead relatives, and marked the same off in accordance with custom, and that the lot in which plaintiffs uncle is buried is within her square, where-fore she claims the right to compel the removal of this body and its reinterment elsewhere, and in her answer she prays that she be given this relief against the plaintiff, and against the plaintiff's father, John W. Sherrard.

The rights of the respective parties to this controversy depend largely upon the fact as to which of their burial lots include the ground in which the body of plaintiff's uncle was interred The proof is full, in fact is uncontradicted, that this piece of land was set apart for burial purposes many, many years ago, and has been dedicated to that use ever since. The proof is just as satisfactory that the method of selection of a burial lot in this cemetery was, by the party desiring such lot, going upon the ground and marking It in some way, and improving and keeping it in presentable condition, as well as by burial of bodies of dead relatives therein and marking the graves That the plaintiff's ancestor did select a row or square many years ago for this purpose is likewise not disputed, but it is the boundaries of this square, or the limits of it, which make the controversy here. The plaintiff's father is the principal witness upon the acts of ownership exercised by Dr. Shockey and his successors over this plot of ground. He testifies that for many, many years he worked and took care of the lot appropriated by Dr. Shockey, and that it included the space in which his brother's body was buried. Other witnesses testify that he did on many occasions clean up and work the plaintiff's plot, but not one of them have any information that he ever did anything upon that part thereof in which the body of plaintiff's uncle was interred, nor is there any evidence upon the ground defining the limits of the plaintiff's lot at that end of the plot so far as the testimony indicates. On behalf of the defendant it is shown that in the year 1893 she selected a square in this cemetery, and that at that time she made a slight ridge all the way around this square indicating that it had been appropriated; that in this square at that time she buried the body of her father, and that since that time she has had interred in this square the body of her mother, of her father-in-law, her mother-in-law, her sister, and one of her grandchildren, and that she has space reserved therein sufficient for the burial of her own body and the body of her husband. That this square so marked out by the defendant includes the space in which the body of plaintiff's uncle is buried is undisputed. The evidence is overwhelming that the defendant since 1893 from time to time worked upon this square. She has removed the brush and sprouts therefrom, and kept it planted in flowers, and sowed in grass, has provided suitable headstones at the graves of her deceased relatives buried therein, and has kept up the slight ridge around the edges thereof indicat ing the limits of her lot That the father of the plaintiff buried his brother within the limits of this lot there is no question, but his contention, and the contention of the plaintiff, is that Dr. Shockey had acquired this lot prior to the time it had been appropriated by the defendant in 1893. It is clear that in 1893 there was nothing to indicate an intention upon the part of Dr. Shockey or his relatives that their lot should extend to and cover this ground, and it is just as clear that since 1893, when the plaintiff selected the lot, she has indicated by unmistakable marks upon the ground the intention to appropriate the same for burial purposes. Whether this lot was included within the original lot as intended to be appropriated by Dr. Shockey in the beginning can make little difference. There was nothing upon the ground in 1893 to indicate that his row extended in the direction of the defendant's lot beyond the last grave therein. This ground was unappropriated at that time by any person, and under an unbroken custom any person desiring to provide a place for the burial of his dead in this cemetery had a right to appropriate any ground not theretofore marked out and appropriated by some one else for that purpose. It is shown by the evidence and is not disputed that when the plaintiff's father went to the cemetery and indicated the place that he desired the grave dug for the burial of his brother's body, he was told that that was within the defendant's lot, and that he insisted, notwithstanding this information, that the grave be dug at that point. He states in. his testimony that, had the...