Sabin v. Harkness

4 N.H. 415

• Court: Superior Court of New Hampshire
• Decided: October 15, 1828
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court. It seems that, by the rules of the common law, those who have erected grave stones may maintain an action for any injury done to them during their time. But after their decease, the action, in such a case, belongs to the heirs of him, to whose honor and memory the stones were erected. Co. Litt. 18, b; Cro. James, 366, Frances v. Ley; 12 Co. 105, Corven’s Case; 3 Bing. 136, Spooner v. Brewster; Moore, 878, Pym v. Gorwyn; 2 Carrington & Payne, 34, Spooner v. Brewster.

These rules seem to us to be founded in sound reason and good sense. Grave stones are erected to perpetuate the memory of departed friends, and to mark the spot where their ashes repose. Those who erect them must, in general, have and feel an interest in their preservation. And this is an interest, which the law wisely protects. For no one is so likely to vindicate injuries done to these memorials as those who erected them. But when they, who erected the stones, are gone, as the heirs of those to whose memory they may have been erected, must then have the deepest interest in their preservation, the law wisely leaves it to those heirs to vindicate the wrong. In these monuments, neither executors nor administrators have any interest. They are fixed to the freehold and belong to the heirs. Nor do they cease to be their property, when severed from the freehold. When a man’s property, which is fixed to the freehold, is severed, it does not thereby cease to be his property.

We are, thefore, of opinion, that the judgment of the common pleas be affirmed.