West View Corp. v. Alston, 17440

• Decision Date: 22 May 1951
• Docket Number: No. 17440,17440
• Citation: 208 Ga. 122,65 S.E.2d 406
• Parties: WEST VIEW CORP. v. ALSTON et al.
• Court: Georgia Supreme Court

Page 406

65 S.E.2d 406

208 Ga. 122

WEST VIEW CORP. v. ALSTON et al.

No. 17440.

Supreme Court of Georgia.

May 22, 1951.

Rehearing Denied June 13, 1951.

Syllabus by the Court.

The decree in this case was not authorized under the terms of the contract between the parties, and it was error to grant an injunction.

Mrs. Robert Alston and Mrs. Marion Harper brought a petition, in behalf of themselves and others similarly situated, against West View Corporation, which operated the West View Cemetery. Mrs. Alston and Mrs. Harper had bought lots in the cemetery and used them for burial purposes. They alleged that the corporation, by its manner of conducting the cemetery, was violating the terms of their deeds to the burial lots; and that a controversy as to the respective rights of the operator of the cemetery and the purchasers of lots therein existed, which emanated from a difference in the construction of the conditions made a part of the deeds to the lots. The petitioners alleged certain acts and omissions on the part of the corporation, which they asserted would be continued, each of which was contrary to the obligations and conditions of their deeds. They sought a declaratory judgment defining the rights and obligations of the parties, and an injunction to prevent specified acts on the part of the corporation pending the determination of the questions in dispute.

The corporation answered, and in substance set up that such acts on their part as were admitted were done and authorized under the terms and conditions of the deeds they executed to the owners of the lots.

The deeds to the burial lots were ordinary warranty deeds conveying a fee-simple title, but subject to nineteen conditions relating to the use of said lots, which are made part thereof. The conditions here in question are:

4. 'The proprietor of each lot shall have the right, subject to the approval of the Superintendent, to cultivate shrubs and plants in the same; but no tree growing within the lot or border shall be cut down or destroyed without the consent of the Directors.'

5. 'If any trees or shrubs situated in any lot shall by their roots or branches become detrimental to adjacent lots or avenues, or unsightly or inconvenient to passengers, it shall be the duty of the Directors, or their agents, and they shall have the right, to enter the said lot and remove the said trees and shrubs, or such parts thereof as they shall determine to be detrimental, unsightly or inconvenient.'

7. 'If any monument, effigy or any structure whatever or any inscription be placed in or upon any lot which shall be determined by the Directors to be offensive or improper, or injurious to the appearance of surrounding lots or grounds, they shall have the right, and it shall be their duty to enter upon such lot and remove the said offensive or improper object.'

10. 'Headstones for graves, or any structure used to mark a grave, must not exceed 6 inches in height above the surface of the ground, and they must not be less than 6 inches nor more than 15 inches thick, and must not exceed 30 inches in width. No steps to lots will be permitted. Stone slabs will not be permitted, either erect or reclining. All stone and marble work, monuments and headstones, must be accepted by the Superintendent as being in conformity with the foregoing rules before being taken into the cemetery. Lot owners may have planting or other work done on their lots at their expense, upon application to the Superintendent. No workmen, other than employees of the cemetery, will be admitted into the Cemetery, except for the purpose of setting stonework. No iron or wirework, and no seats or vases will be allowed upon lots, except by permission of the Directors; and when any article made of iron begins to rust, the same shall be removed from the Cemetery. No artificial stone will be permitted in the Cemetery. So-called rock face work will not be permitted on the exposed surfaces of any monument, vault structure, stone or marble vase or seat, nor shall it be used for grave markers, or the base of any of the foregoing, except upon the approval of the Secretary.'

18. 'The grantee herein has contributed his proportionate part to a trust fund deposited in trust with a Trustee, the income from which is to be used for the maintenance and care of the lots in West View Cemetery, including the lot herein described, and shall not hereafter be chargeable with the cost of any such maintenance and care of said lot.'

By agreement all questions of fact and law were submitted to the trial judge. After hearing evidence, the trial judge made certain specified findings of fact, and based thereon issued a decree setting forth the rights of the parties, and enjoined the corporation from doing any act contrary to the terms of the decree.

The corporation filed a motion to correct, amend, modify, vacate and set aside the court's findings of fact and decree on various grounds. After a hearing thereon the court amended the decree. The decree as amended is as follows:

'1. That the plaintiffs have the right and privilege, upon application to the Superintendent of said Cemetery, to plant and cultivate shrubbery and plants, at their own expense, upon their respective lots, provided the branches and roots do not enter onto or overhang the lot of another, or obstruct passageways and, provided further, that the same is not unsightly and does not otherwise work an injury to another lot owner or the defendant. The court further decrees that the plaintiffs have the right to have said shrubs and plants cultivated and planted by competent and skillful workmen of their own selection upon application to the Superintendent of said Cemetery in the event the defendant arbitrarily refuses to furnish its employees at reasonable rates for the performance of said service.

'2. It is further declared and decreed that if any tree or shrubbery situated in any lot which, by their roots or branches become detrimental to adjacent lots or avenues, or unsightly, or inconvenient to passengers, then in that event the defendant has the right and duty to remove such tree or shrubbery, or any part of the same. However, the Court declares and decrees that the defendant has no right, power or authority to remove any plant, flower or shrubbery from the plaintiffs' lots except as above decreed in this paragraph.

'3. It is further declared and decreed by the Court that defendant is under the obligation and duty of now maintaining the approximate number of water faucets in the approximate locations as existed at the time the plaintiffs purchased their lots, and that the defendant is under the further duty and obligation of permitting the plaintiffs to secure the necessary water from the defendant's faucets to water the flowers, shrubbery and plants located on plaintiffs' lots, provided the plaintiffs pay to the defendant the reasonable value of the water thus secured and used.

'4. It is further declared and decreed by the Court that the defendant does not have the right to require that all grave markers which may be placed by the plaintiffs on their lots in the future shall be installed flush with the ground. The plaintiffs have the right to install footstones and headstones in the future to mark the graves on their lots so long as the same do not exceed 6 inches in height above the surface of the ground and so long as they are not less than 6 inches nor more than 15 inches thick, and not more than 30 inches in width. The number of markers shall not exceed the limit provided for in the rules and regulations annexed to the plaintiffs' deeds.

'5. It is further declared and decreed by the court that the dances thus conducted by the defendant offends the sensibilities of a normal person and even a dullard and violates the properties of a Cemetery and the defendant is hereby permanently enjoined from conducting, allowing or permitting such dances in said Administration Building, or at any other place on said Cemetery grounds. The trophy room being enclosed and not being visible to the public does not violate the properties of said Cemetery and the court declares that plaintiffs have no right to prevent the maintenance of same in its present condition.

'6. It is further declared and decreed by the court that the defendant is under the duty and obligation of cutting the grass when needed on the plaintiffs' lots, planting grass on plaintiffs' lots where none is growing and is needed, filling in holes on plaintiffs' lots, maintaining, repairing and keeping up walkways and drive-ways, all of these things to be done in the same manner and to the same extent as was being done by the defendant at the time of the purchase of said lots by the plaintiffs; that the expense of said care and maintenance to be paid for from the income derived from said trust fund. In the event that the income derived from said trust fund is insufficient to cover the expense of said...