Temple v. City Of Petersburg

CourtSupreme Court of Virginia
Citation29 S.E.2d 357,182 Va. 418
Decision Date13 March 1944
Docket NumberNo. 2742.,2742.
PartiesTEMPLE et al. v. CITY OF PETERSBURG.

Rehearing Denied May 5, 1944.

Appeal from Hustings Court of City of Petersburg; R. T. Wilson, Judge.

Suit in equity by Maggie H. Temple and others against the City of Petersburg to enjoin the use of a tract of land for cemetery purposes. From a decree dissolving a temporary injunction and denying the relief prayed, complainants appeal.

Affirmed.

Before CAMPBELL, C. J, and HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

William Old, of Chester, for appellants.

J. Gordon Bohannan and Willis W. Bohannan, both of Petersburg, for appellee.

GREGORY, Justice.

The appellants, who were the complainants in the court below, filed their bill in equity against the city of Petersburg, praying that it be restrained and enjoined from using a tract of 1.01 acres of land acquired by it in 1942 for cemetery purposes. This plot of land adjoined Peoples Memorial Cemetery, which had been established and used as a cemetery for more than one hundred years.

The court below temporarily restrained the city from using the 1.01-acre tract as an addition to the cemetery. Later the city filed its answer to the bill and, by consent, the cause was set for hearing upon the bill, the answer, and a stipulation of counsel. The court dissolved the injunction and refused the prayer for relief.

Code, sec. 56 (Michie 1942), provides in part as follows:

"No cemetery shall be hereafter established within the corporate limits of any city or town; nor shall any cemetery be established within two hundred and fifty yards of any residence without the consent of the owner of the legal and equitable title of such residence; * * *."

We are called upon to ascertain the proper meaning of the statute, and to decide whether or not it has been violated by the city. Specifically the controversy con-cerns the meaning to be given to the word, "established", used therein. The appellants maintain that under the statute the enlargement of an existing cemetery, such as is sought here, in reality is the establishment of a cemetery, while the appellee contends that to enlarge an existing cemetery is not the establishment of a cemetery and, therefore, constitutes no violation of the statute.

In 1916, John D. Temple, the predecessor in title of the appellants, acquired lot number 169 in the city of Petersburg, and erected a residence thereon. In 1917 he acquired the adjoining lot, number 168. Upon his death, intestate, in 1921, this real estate descended to the appellants, who have maintained a residence thereon since that time. The residence faces St. Andrews street, and is bounded on one side by Talliaferro street.

At the time that John D. Temple erected his residence, Peoples Memorial Cemetery was already established on a tract of eight acres, a portion of which extended to within 80 feet of his residence. Between the residence and the cemetery there is Talliaferro street, which is 30 feet wide, and a vacant strip of land belonging to the city of Petersburg, 50 feet in width. Upon this vacant strip of land there are a number of graves, the nearest of which is 74 feet east of the residence.

The cemetery tract on one side adjoined Crater road. It became necessary for the city to widen and improve Crater road. In order to do so, a strip of the cemetery property was required to be taken by the exercise of eminent domain. Many bodies had been interred upon this strip, and it is necessary to exhume them in order to complete the improvement of the road. The city, desiring to provide a proper place to re-inter these bodies, acquired the tract of 1.01 acres of land on the south side of St. Andrews street adjoining the cemetery tract. The 1.01-acre tract so acquired lies directly across St. Andrews street in front of the appellants' residence, and 70 feet distant therefrom at the nearest point. It is the plan of the city of Petersburg to re-inter the bodies in this proposed addition to the cemetery. Afterwards, the city plans to convey the said tract to trustees to be appointed by the hustings court of the city in order that it may be incorporated in the Peoples Memorial Cemetery and be made an integral part thereof.

The principal and determinative issue to be determined in this cause is whether or not the proposed enlargement of Peoples Memorial Cemetery, by the additional 1.01-acre tract, is prohibited by section 56 of the Code.

The appellants most strongly contend that the word, "established", as used in the statute, means "located", and that the evil intended to be inhibited is the location of a cemetery in a city or town upon ground not previously dedicated for cemetery purposes, or the location of a cemetery within 250 yards of a residence, whether by enlargement or otherwise. They contend that the purpose of the statute is to protect residences and lands from the ill effects growing out of close proximity to a cemetery. They further contend that it is unreasonable to say that residences and lands are to be protected against the "establishment" of cemeteries, but are not to be protected against the encroachment or enlargement of existing cemeteries; that the evil created by one is equally as real as that created by the other.

The position of the appellee is that the word "established", has such a clear and precise meaning that no question of statutory construction arises. That the statute provides that no cemetery shall be "hereafter...

To continue reading

Request your trial
25 cases
  • Appalachian Power Co. v. State Corp. Comm'n, Record No. 210391
    • United States
    • Supreme Court of Virginia
    • 18 d4 Agosto d4 2022
    ...clearly on a subject, "effect must be given to it regardless of what courts think of its wisdom or policy." Temple v. City of Petersburg , 182 Va. 418, 423, 29 S.E.2d 357 (1944). Courts committed to neutral principles of interpretation "are not ‘free to pave over bumpy statutory texts in th......
  • South v. Com., Record No. 2209-04-1.
    • United States
    • Supreme Court of Virginia
    • 20 d2 Dezembro d2 2005
    ...clearly on a subject, "effect must be given to it regardless of what courts think of its wisdom or policy." Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944). We may not extend the meaning of the statute "simply because it may seem to us that a similar policy applies......
  • Com. v. Amec Civil, LLC, Record No. 2061-08-2.
    • United States
    • Court of Appeals of Virginia
    • 16 d2 Junho d2 2009
    ...clearly on a subject, "effect must be given to it regardless of what courts think of its wisdom or policy." Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944). Code § 33.1-386(A) states the contractor "shall" provide "written notice" of its intention to later file a c......
  • Bonner v. Commonwealth, Record No. 0565–11–2.
    • United States
    • Court of Appeals of Virginia
    • 11 d2 Dezembro d2 2012
    ...intent, to give effect to it, unless it transcends the legislative power as limited by the Constitution.”Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 359 (1944) (quoting Commonwealth v. Sanderson, 170 Va. 33, 38–39, 195 S.E. 516, 519 (1938)). Since Code § 18.2–311.1 does not const......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT