Shiel v. Walker

• Decision Date: 06 November 1905
• Citation: Shiel v. Walker, 114 Mo. App. 521, 90 S.W. 124 (Mo. App. 1905)
• Parties: SHIEL et al. v. WALKER.
• Court: Missouri Court of Appeals

90 S.W. 124

114 Mo. App. 521

SHIEL et al. v.WALKER.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. CEMETERIES—PROCEEDINGS TO CONDEMN—EXISTING BURIAL GROUNDS.

Under Rev. St. 1899, § 5217, providing for the enlargement of public burial grounds by condemnation of adjoining lands, and Sess. Acts 1901, p. 54, § 5217a, providing that, when lands shall have been continuously used as a public burial ground for a period of 10 years or more, a title may be obtained to such lands in the way and manner provided for the enlargement of burial grounds, where it is sought to condemn an existing burial ground, owned by a large number of persons, to whom the original owner has sold lots, all such owners are necessary parties.

2. SAME.

Rev. St. 1899, § 5217, and Sess. Acts 1901, p. 54, § 5217a, do not contemplate the condemnation of an existing cemetery platted and used as directed by section 8963, Rev. St. 1899, but only apply where grounds have been permitted to be used for burial purposes without having been platted and recorded.

Appeal from Circuit Court, Nodaway County; Alonzo D. Burnes, Special Judge.

Petition by A. Shiel and others against William H. Walker.From a judgment sustaining a demurrer to petitioners' evidence, they appeal.Affirmed.

Ira K. Alderman and Ramsay, Cummins & Aleshire, for appellant.J. S. Shinabargar, L. C. Cook, and George P. Wright, for respondent.

ELLISON, J.

This is a proceeding begun under section 5217, Rev. St. 1899, to condemn lands for the enlargement of a public burial ground, and also, under section 5217a, Sess. Acts 1901, p. 54, to condemn an existing burial ground.The trial court sustained a demurrer to the evidence offered in behalf of the petitioners, and they appealed.

It appears that about 30 years ago defendant platted into burial lots about 2 acres of his farm; that the plat contained 200 lots of sufficient size for 8 graves or burials; that of these defendant has sold and deeded to various persons, up to the beginning of this proceeding 130 lots; that in 1903defendant laid off an addition to said burial ground of 2 acres, containing 150 lots, which are held for sale by him upon like terms as the original lots, though up to the beginning of this proceeding none had been sold.These petitioners, to the number of five, as before stated, seek to condemn the original grounds as a public burial ground, and to condemn the addition laid off thereto as an extension of such original grounds.The following are the sections of the statute referred to above:

Section 5217, Rev. St. 1899: "Whenever it shall become absolutely necessary to enlarge any public burial ground or cemetery, and when the public, to the number of five or more persons, interested in the enlargement of said burial grounds or cemetery, and the owner or owners of the adjoining land, cannot agree as to the price to be paid for the same, or for any other cause cannot secure a title thereto, the public, to the number of five or more persons, may proceed to condemn the same, in the same manner as provided by law for condemnation, appropriation and valuation, in cases of lands taken for telegraph and railroad purposes; and on such condemnation, and the payment of the appraisement...