Frost v. Columbia Clay Company

124 S.E. 767, 130 S.C. 72, 1924 S.C. LEXIS 72

• Court: Supreme Court of South Carolina
• Decided: October 14, 1924
• Docket: 11577
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Fraser.

The respondents make the following statement:

“As noted in the case for appeal, this was an action commenced in November, 1922, by the plaintiff against the defendants, for damages for the trespassing on and excavating in a graveyard which had formerly been the family burying ground of the plaintiff’s family.

‘The trial Court directed a verdict for the defendant on the ground that the alleged burial place had been abandoned.

“It is admitted that excavations were made in what had formerly been the burying ground o.f the Frost family, and that some bones were unearthed.

“In the motion for directed verdict for the defendant, a number of grounds were submitted, but the presiding Judge stated that there were only two grounds which he would consider; that is to say, the question of notice to the defendant company of the existence of a graveyard and the question of abandonment, and the other grounds were overruled, but in order to properly controvert the exceptions raised by the appellant it is necessary to bring to the atten tion of this Court the several grounds raised on the trial of the case by the respondents.

“The Court directed a verdict in favor of the defendant, on the primary ground that the alleged burial place had been abandoned. Using the words of the Court in commenting on the testimony of the plaintiff, Mr. Frost, the Judge says : ‘The undisputed evidence of the plaintiff in this case, out of his own lips, is that that graveyard had not been used in over 20 years; and it was over 20 years ago since the last two people were buried in it. It has grown up in trees or shrubbery, and has been discontinued as a burial place, even for the family of the plaintiff.’ ”

The plaintiff moved for the direction of a verdict, leaving only the amount to the jury. The presiding Judge refused the motion of the plaintiff and directed a verdict for the defendant, as above stated. It is not necessary or proper to discuss the evidence, as this case must go back.

1. The first question is: Is there indisputable evidence that this family graveyard had been abandoned ? There was not. While there is no case in this State directly in point, yet Ex parte McCall, 68 S. C., 492; 47 S. E., 974, throws some light on it.

“It is also true, as a general proposition, that where ground has been dedicated to the public for use as a cemetery, the owner cannot afterward resume possession or remove the bodies interred therein, although he has received no consideration for its use, and the interments were made merely by his consent. [Cases cited.] This doctrine is somewhat anomalous, and is riot to be extended beyond the principle upon which it is founded. That principle is that the most refined and sacred sentiments of humanity cluster around the graves of departed loved ones, and that when these sentiments have become associated and connected with a particular spot of ground, by the invitation or consent of the owner, he shall not, for any secular purpose, disturb them.”

The laws do, or should, set forth the sentiment of the people who are subject to them. This is particularly true under a government like ours. From the time of Abraham, the places where the dead were buried have been considered sacred and inviolate. All nations respect the graves of the dead. The graves of ancestors are a subject of idolatrous worship by the heathen. Our literature is full of references to the last or final resting place. In some of our church literature we find the statement that the bodies of our dead “do rest in their graves until the Resurrection.” These burial places are sometimes called “God’s Acre.” The idea of perpetuity runs through nearly all references to the grave. Of course, as in nearly every other matter, there are exceptions. As was said in B% parte McCall, sometimes the tenderest love requires the removal to more suitable surroundings.

The abondonment of a burying place is accomplished by the removal of the remains to a more suitable place. The change of the place for the burial of those who die, or have died after a given time does not constitute an abandonment of a graveyard, and his Honor was in error in so holding.'

2. There was no error in refusing to direct a verdict for the plaintiff. While it is true that a graveyard may not be abandoned except by the removal of the remains of the dead that does not mean that a man. may not abandon his rights to damages, for the negligent or wilful invasion of what should be a hallowed spot. The defendant pleaded estoppel and there was evidence upon which a verdict for estoppel might have been based. The injunction is not in issue. To this the respondent consented.

Besides this, the defendants claim that they did not know that there was a graveyard there, and, without fault of their own, they dug up the bones, and at once stopped when they found out their mistake. These were matters for the jury.

The judgment is reversed, and a new trial ordered.

Messrs. Justices Watts and Marion concur.