Sherrard v. Henry

106 S.E. 705, 88 W. Va. 315, 21 A.L.R. 645, 1921 W. Va. LEXIS 85

• Court: West Virginia Supreme Court
• Decided: March 22, 1921
• Status: Published

Opinion

R.ITZ, PRESIDENT:

Plaintiff brought this suit for the purpose of enjoining the defendant from removing the body of her uncle from a burial plot in a cemetery in Oakland, in Morgan county. Prom a decree perpetuating the injunction and refusing the defend-ánd the relief prayed for in her cross bill answer, the defendant prosecutes this appeal.

It appears that many years ago there was conveyed to certain trustees for the Methodist Church a tract of land for religious purposes. Upon a part of this land was erected á church building in which has been conducted religious services, and another part of the land was set apart as a burial ground. It appears that this part was enclosed by a fence’. No charge was made for lots in this cemetery, it being the uniform and unbroken custom since it was set apart and dedicated for burial purposes for those desiring to bury their dead therein to select a lot for that purpose, and to indicate such selection by marking such lot, and by cleaning it up and keeping it in presentable condition. Both parties to this suit agree as to this phase- of the case, and both of them claim the right to the lot in which plaintiff’s uncle was buried, by reason of the same having been pre-empted in the' manner above indicated. The plaintiff contends that her grandfather, Dr. B. E. Shockey, selected a row, as she calls it, in this cemetery for the burial of members of his family and their close relatives, and that this row includes the lot wherein her uncle was buried. The defendant, on the other hand, contends that she, in the year 1893, selected a square in this cemetery for the bnrial of her dead relatives, and marked the same off in accordance with custom, and that the lot in which plaintiff’s uncle is buried is within her square, wherefore she claims the right to compel the removal of this body and its re-interment elsewhere, and in her answer she prays that she be given this relief against the plaintiff, and against the plaintiff’s father, John W. Sher'rard.

The rights of the respective parties to this controversy depend largely upon the fact as to which of their burial lots include the ground in which the body of plaintiff’s uncle was interred. The proof is full, in fact is uncontradicted, that this piece of land was set apart for burial purposes many, many years ago, and has been dedicated to that use ever since. The proof is just as satisfactory that the method of selection of a burial lot in this cemetery was, by the party desiring such lot, going upon the ground and marking it in some way, and improving and keeping it in presentable condition, as well as by burial of bodies of dead relatives therein and marking the graves. That the plaintiff’s ancestor did select a row or square many years ago for this purpose is likewise not disputed, but it is the boundaries of this square,' or the limits of it, which make the controversy here. The plaintiff’s father is the principal witness upon the acts of ownership exercised by Doctor Shockey and his successors over this plot of ground. He testifies that for many, many years he worked and took care of the lot appropriated by Dr. Shockey, and that it included the space in which his brother’s body was buried. Other witnesses, testify that he did on many occasions clean up and work the plaintiff’s plot, but not one of them have any information that he ever did anything upon that part thereof in which the body of plaintiff’s uncle was interred, nor is there any evidence upon the ground defining the limits of the plaintiff’s lot at that end of the plot so far as the testimony indicates. On behalf of the defendant it is shown that in the year 1893 she selected a square in this cemetery, and that at that time she made a slight ridge all the way around this square indicating that it had been appropriated; that in this square at that time she buried the body of her father, and that since that time she has had interred in this square the body of her mother, of her father-in-law, her mother-in-law, her sister, and one of her grandchildren, and that she has space reserved therein sufficient for the burial of her own body and the body of her husband. That this square so marked out by the defendant includes the space in which the body of plaintiff’s uncle is buried is undisputed. The evidence is overwhelming that the defendant since 1893 from time to time worked upon this square. She has removed the brush and sprouts therefrom, and kept it planted in flowers, and sowed in grass; has provided suitable headstones at the graves of her deceased relatives buried therein, and has kept up the slight ridge around the edges thereof indicating the limits of her lot. That the father of the plaintiff buried his brother within the limits of this lot, there is no question, but his contention, and the contention of the plaintiff, is that Doctor Shockey had acquired this lot prior to the time it had been appropriated by the defendant in 1893. It is clear that in 1893 there was nothing to indicate an intention upon the part of Doctor Shockey or his relatives,that their lot should extend to and cover this ground, and it is just as clear that since 1893, when the plaintiff selected the lot, she has indicated by unmistakable marks upon the ground the intention to appropriate the same for burial purposes. Whether this lot was included within the original lot as intended to be appropriated by Doctor Shockey in the beginning can make little difference. There was nothing upon the ground, in 1893 to indicate that his row extended in the direction of the defendant’s lot beyond the last grave therein. This ground was unappropriated at that time by any person, and under an unbroken custom any person desiring to provide a place for the burial of his dead in this cemetery had a right to appropriate any ground not theretofore marked out and appropriated by someone else for that purpose. It is shown by the evidence and is not disputed that when the plaintiff’s father went to the cemetery and indicated the place that he desired the grave dug for the burial of his brother’s body, he was told that that was within the defendant’s lot, and that he insisted, notwithstanding this information, that tbe grave be dug at that point. ■ He states in his testimony that had the defendant -come to him and advised him that she claimed this lot he would have surrendered any claim to it, and buried his brother elsewhere, but that he is now unwilling to remove the Temains. This testimony is not at all consistent with his •act in burying his brother in this lot after being fully informed of the defendant’s claim thereto and without making any further inquiry or investigation as to defendant’s rights. In addition to this the insincerity of his statement is demonstrated by the- fact that immediately upon the discovery by the defendant that this body was buried in her lot •she called upon plaintiff’s father to have the same removed, and informed him that the lot was hers, and she proposed to pay one-half of the expense of the removal of the body, and when this proposition was declined she proposed that she would pay the entire expense of removing it, which proposition was also declined. She then called upon the trustees who held the legal title to the property and asked them to xequire the plaintiff and her father to remove the body of the plaintiff’s uncle from her lot, and the trustees being advised in the premises notified plaintiff’s father to remove the body within thirty days, failing in which the defendant would have the same removed. Before the expiration of this time this injunction was procured.

The defendant challenges the jurisdiction of a court of •equity to maintain this bill, insisting that there is an adequate remedy at law for the protection of any rights which the plaintiff may have. This claim is based upon the theory that the plaintiff is not in possession of the lot, and is, therefore, not entitled to go into equity to protect any rights she may have therein. That a court of equity will interfere to prevent desecration of places of burial of the dead, or to prevént the removal of bodies properly buried, is well established. There is no property in a dead body, and this being true the law can afford no -remedy in a case where the removal of such a body is sought or attempted. The courts do, however, recognize that while there is no property In the body, the close relatives have a right to protect the same, and to prevent its removal, or the desecration of the grave. This being true, there is no other remedy except resort to a court of equity when the removal of a dead body is attempted or threatened, and then such relief is granted as the circumstances require, and as is in consonance with the feelings of mankind. Wormley v. Wormley, 207 Ill. 411, 69 N. E. 865, 3 L. R. A. (N. S.) 481, and monographic note; England v. Central Pocahontas Coal Company, 86 W. Va. 575, 104 S. E. 46. There is no doubt of the plaintiff’s right to resort to a court of equity to prevent interference with the body of her dead uncle, unless it appears that it was interred in a place where the plaintiff had no right to bury it. There is no doubt but that one who acquires a cemetery lot has some interest, therein. He does not acquire the fee in the land. His interest is more in the nature of a perpetual easement, and it is likewise true that the exercise of this, right is subject to the police power of the state. Conditions may arise which would make such a cemetery a nuisance, in which case the state, under its police power, could require its removal and the re-interrment of the bodies at some other point. 5 R. C. L. title ‘‘Cemeteries” § 10; Grinnan v. Fredericksburg Lodge, 118 Va. 588; Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769.

It seems to be quite as well established that this right may be acquired by adverse possession as any other interest .in real estate may be acquired, and both of the parties, in this case contend that this is the way they did acquire the rights for which they respectively contend in this suit. The plot of land in controversy was' not enclosed. by either of the-parties with any fence, and as. before stated the limits of the Shockey lot were not definitely marked upon the ground at any time, at least not.in 1893 when the defendant appropriated the lot. There are some authorities which hold that in order to the acquisition of title by adverse possession, where such posession is not accompanied by any color of'title, the exterior boundaries must' be indicated by a fence, or barrier, and if this rule is applied in this case neither of the parties have had any adverse possession of this particular piece of ground. There is no doubt bqt that the extent of such'claim must be indicated in some way upon the ground, and this delimitation of the claim upon the ground must be of such character as to clearly indicate that it is claimed by the party asserting the right thereto. There must be such marks as indicate that the land is under the actual control of the party claiming it. Jacobus v. Congregation of Israel, 107 Ga. 518, 33 S. E. 853; 5 R. C. L., title “Cemeteries” § 10; 2 C. J. §. 71; Hook v. Joyce, 94 Ky. 450, 21 L. R. A. 96; Roumillot v. Gardner, 113 Ga. 60, 53 L. R. A. 729; Hines v. State, 126 Tenn. 1, 149 S. W. 1058, 42 L. R. A. (N. S.) 1138; Wooldridge v. Smith, 243 Mo. 190, 147 S. W. 1019, 40 L. R. A. (N. S.) 752; Illinois Steel Co. v. Bilot, 109 Wis. 418, 85 N. W. 402, 83 Am. St. Rep. 905; Lyons v. Fairmont Real Estate Co., 71 W. Va. 754. The proof in this case is clear that the defendant had buried in her square a number of her rela tives whose graves were marked by headstones indicating that at least the portion of the ground in which they were buried had been appropriated for that purpose. If. this had been all that she had done her interest might extend no further than the land occupied by these graves, but in addition to this, ever since the year 1893 she has had this entire square, including the land where plaintiff’s uncle is buried, surrounded by a ridge indicating the limits of her claim, and has cared for all of the land included within this slight barrier by sowing the same in grass, planting flowers thereon, and caring for the same from year to year as the same needed attention. This was a clear indication that this piece of ground had been appropriated by the defendant for burial purposes, and as held in the case of Lyons v. Fairmont Real Estate Company, supra, was a sufficient indication of the limits of her claim. We are, therefore, of opinion that the defendant was entitled to the exclusive right to bury her dead in the space where the body of the plaintiff’s uncle was buried, and that neither the plaintiff nor her father had any right to appropriate this land for the purpose of interring the body of their deceased relative therein.

The defendant, as before stated, asked for affirmative relief, and prayed that John W. Sherrard, the father of the plaintiff, in addition to the plaintiff, be made a party defendant to her cross bill. This was done, and process served upon him upon the cross bill. Defendant now insists that she is not only entitled to defeat the plaintiff’s claim, bnt is also entitled to a mandatory injunction herein commanding and requiring the plaintiff and her father to forthwith remove the body of their deceased relative from the place where the same is now buried, in order that she may enjoy the rights to which she" is entitled. It would seem quite clear that where one trespasses upon the rights of another, and does some act which would prevent such other from enjoying to the full extent the privileges to which he is entitled, a court of equity will compel the guilty party to restore the status quo, and this is as true in the case of the unauthorized interment of a dead body as with any other interference. McWhorter v. Newell, 200 Ill., 583; Dwenger v. Geary, 113 Ind. 106.

It follows from what we have said that the decree complained of will be reversed, and the injunction dissolved, and that a mandatory injunction will be granted to the defendant, in accordance with the prayer of her cross bill answer, commanding and requiring the plaintiff and her father John W. Sherrard to forthwith remove the body of their deceased relative from the point where 'the same is now buried upon the defendant’s lot, and the cause remanded for the purpose of executing this decree.

Beversed and rendered.