Woodlawn Cemetery v. Everett

• Decision Date: 10 September 1875
• Citation: 118 Mass. 354
• Parties: Woodlawn Cemetery v. Inhabitants of Everett
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 354

Woodlawn Cemetery v. Inhabitants of Everett

Supreme Court of Massachusetts

September 10, 1875

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Middlesex. Contract to recover the amount of taxes paid under protest. The case was submitted to the Superior Court, and after judgment for the defendant, to this court, on appeal, upon an agreed statement of facts, in substance as follows:

On August 31, 1850, in pursuance of the St. of 1841, c. 114, the Woodlawn Cemetery was organized as a corporation, "for the purpose of procuring, establishing, and preparing a cemetery or burial place for the dead." In 1851, the corporation purchased a parcel of land, then in the town of Malden, for the objects of its organization; which land was then and has been ever since dedicated and used for the purpose of a cemetery, and more than eight thousand persons have been buried therein.

A portion of the Woodlawn Cemetery was then bounded in part by land known as the Corbett farm, which extended into it, touching it on three sides and almost reaching to one of the main avenues. As soon as the Woodlawn Cemetery was organized, an effort was made by it to procure this land; but it was conveyed on October 1, 1850, by Corbett to Samuel G. Wheeler, who on the same day conveyed it to the Mt. Lebanon Cemetery, a corporation organized under the same statute, in the same manner and for the same purpose as the Woodlawn Cemetery. The Mt. Lebanon Cemetery Corporation voted to appropriate the same to the purposes of a cemetery or burial place for the dead; but, after the payment of $ 8,000 of the purchase money, the purchaser failed to pay the residue, and Corbett took possession for condition broken, under a mortgage made to him by Wheeler, and foreclosed the same about 1858. No burials were made therein, but the lands have since remained, divided by stone walls into five or six wood, pasture, or grass lots, high and low, generally rough, and which would require much time and expense to prepare them for burial purposes.

After the death of Corbett, the Woodlawn Cemetery, at a meeting held on March 11, 1868, unanimously voted to purchase and secure for the purposes of the cemetery, as soon as possible, the said Corbett lot, containing about seventy-five acres, and that the president or treasurer petition the town of Malden in behalf of Woodlawn Cemetery for consent to annex said land to their cemetery and to devote the same immediately to the purposes of burial and to the uses and purposes of the cemetery. The trustees of the cemetery, on April 6, 1868, by vote, unanimously approved of such purchase and advised its completion for such purposes.

A meeting of the town of Malden was held on April 6, 1868, in pursuance of a warrant which contained the following article: "To see if the town will consent to the enlargement of Woodlawn Cemetery by adding thereto the Corbett farm, so called, adjoining the same, on petition of H. W. Fuller, treasurer;" and at said meeting the town passed the following vote: "That we do not consent that the Corbett farm, so called, be sold to be used for a cemetery or for burial purposes."

The Woodlawn Cemetery, nevertheless, thereafter completed the purchase of said land, according to a previous agreement, and the said land was conveyed to it on April 30, 1868, by deed that day recorded, and notice thereof and also that it was dedicated to the uses and purposes of a cemetery was given the same day to the selectmen and assessors of Malden, and the fence which had separated it from the cemetery was then removed; and at a meeting of the plaintiff corporation, held March 10, 1869, the following vote was passed: "That we approve the purchase of the Corbett lands, and dedicate them to the purposes of a cemetery or burial place for the dead." Notice thereof was given to the town of Malden.

In 1868 and 1869, taxes were assessed in the town of Malden upon the Corbett farm land, and upon the refusal of the plaintiff to pay said taxes, a meeting of the town was held October 16, 1869, in pursuance of a warrant which contained the following article, entitled the sixth: "To see what action the town will take relative to collecting the tax on the Corbett farm, and pass any votes on the subject that may be deemed proper." At said meeting it was voted "that the subject matter of the sixth article be referred to the selectmen with full powers."

Upon conferences thereafter had between the selectmen and the plaintiff, the following written agreement was executed for the compromise and adjustment of the controversy: "The Woodlawn Cemetery consent and agree, for the sake of harmony, to pay the assessed taxes, amounting to $ 350; and the town, so far as this committee have power, grants them permission to use the said lands owned by them for the purposes of burial." In pursuance of this agreement, the taxes were paid before the passage of the St. of 1870, c. 66, and before the town of Everett was set off from Malden, and the town of Everett had its share of the benefit thereof as part of the town of Malden.

Soon afterwards, by the St. of 1870, c. 66, a part of the town of Malden, which included the cemetery and all other lands aforesaid belonging to the plaintiff, was incorporated on March 9, 1870, into the town of Everett; and public taxes were assessed by said town of Everett upon the Corbett farm land in 1870 and 1871, amounting in the whole to the sum of $ 400.57, which sum was paid to the defendant by the plaintiff, under protest, on January 22, 1873, after said land had been advertised for sale for nonpayment of such taxes.

Immediately after the purchase of the said land by the plaintiff, the house thereon was repaired, and has been ever since occupied by the gardener of the cemetery, without rent; and a hothouse for propagating plants for the cemetery was built thereon, in 1868, and has ever since been in use for that purpose, a young nursery of evergreens was also planted near the cemetery, and portions of the land used for piling places for manure, grave-markers, stone posts, wood, lumber, &c., for the cemetery, and for cutting sods for lots therein. But no part of this land has been used since the purchase for burials, or divided off or laid out into lots or permanent avenues, or any attempt been made to sell the same for purposes of burial.

From 1851 to 1868, the Woodlawn Cemetery contained about eighty acres fit for interments, and at the time of the purchase of the Corbett land, about one half of the burial lots in the cemetery had been sold, and the proprietors, trustees and officers unanimously resolved that the interests of the public as well as of the cemetery, on account of the increase of the population of the neighboring towns, the condition and position of the cemetery, its necessary operations and improvements, required the purchase to be made; and that it was necessary for the good of all concerned and would be advantageous both to the cemetery and to the public, as the land would be soon used for burial purposes or for the cemetery and ought not to be diverted to other uses.

Upon the foregoing statement of facts, so far as material, if the Corbett land was exempt from public taxes, judgment was to be rendered for the plaintiff for such sum as it should appear to be entitled to; otherwise for the defendant; it being agreed that, as to any of said facts which would be immaterial or incompetent, if evidence thereof were offered at a trial, each party reserved the right to take the same objections as could be taken, at the trial, to such evidence.

Judgment for the defendant.

H. W. Paine & H. G. Pickering, for the plaintiff. 1. The St. of 1841, c. 114, under which the plaintiff corporation was organized, by § 3, authorized all such corporations to "take and hold so much real and personal estate as may be necessary for the objects of their organization." This power was to be exercised in the future, and as might be necessary. It was not limited to specific lands or a fixed number of acres. All that should be necessary for the purpose could be held and might be purchased, when necessary, in one parcel or in several parcels. A liberal construction should be given to meet requirements. The court will not limit it to a case of immediate necessity, or for graves only. Massachusetts General Hospital v. Somerville, 101 Mass. 319. Wesleyan Academy v. Wilbraham, 99 Mass. 599.

2. The St. of 1855, c. 237, was not intended to lessen, but to enlarge the plaintiff's rights, and confirm all it had before. This statute expressly provides that the plaintiff corporation shall be entitled to all the rights, benefits and provisions of the St. of 1841, c. 114, and subject to the provisions of the by-laws of the corporation.

This land was exempt from public taxes by the St. of 1841, c. 114 § 7; but the Legislature further, by the St. of 1855, c. 237, expressly provided that the provisions of § 7 of the previous statute "shall apply to all the shares, property and effects of said corporation so long as its real estate shall remain dedicated to the uses and purposes of a cemetery or burial place for the dead." This exemption from public taxes is a vested right, to continue as long as the land continues appropriated to such use...