Southview Cemetery Ass'n v. Kitchens

133 S.E. 919, 162 Ga. 322, 1926 Ga. LEXIS 175

• Court: Supreme Court of Georgia
• Decided: June 18, 1926
• Docket: No. 5143
• Status: Published

Opinion

Gilbert, J.

O. T. Kitchens et al. filed a petition praying that the South-view Cemetery Association et al. be restrained from using any of a described tract of land for cemetery purposes, and from permitting any bodies to be buried on said property, and from selling any of said property or lots therein or parts thereof to any person or persons for the purpose of being used by such purchaser as a burying ground. It was alleged that the defendants had not obtained permission of the authorities of Eulton County, and that under the act of 1910 (Ga. L. 1910, p. 130), which is operative in Eulton County, the board of county commissioners have power to grant or refuse permission to use cemeteries outside of the limits of incorporated towns, and that no cemetery can be established outside of the incorporate limits of any town in said county without the permission of said county authority. The defendants admitted that the land is within four miles of the City of Atlanta, and that they had not obtained the permission of the county authorities as aforesaid; but they insisted that such permission was not necessary, for the reason that it was not the purpose of the defendants to establish a new cemetery, but, on the contrary, it was merely their purpose to extend the limits of an already established cemetery. The court under the evidence was authorized to find that the defendants had for many years owned and operated an established cemetery included within definite boundary lines, and that since the passage and approval of the aforesaid act of 1910 the defendants had acquired additional lands adjacent to the cemetery already established and owned by them, and that it was the purpose of the defendants to use the additionally acquired lands for cemetery purposes. The court granted an interlocutory injunction, and defendants excepted. 1-Ield, that the court did not err in holding that the use of the later acquired land to be devoted to cemetery purposes fell within the provisions of the aforesaid act of 1910, within the meaning of that act; and therefore it was not error to grant the .injunction. Judgment affiryned.

No. 5143. June 18, 1926. George & John L. Westmoreland, for plaintiffs in error. Hooper & Hooper, contra. All the Justices concur.