Sullivan v. Harpeth Development Corp.

401 S.W.2d 195, 218 Tenn. 107, 22 McCanless 107, 1966 Tenn. LEXIS 552
CourtTennessee Supreme Court
DecidedFebruary 7, 1966
StatusPublished
Cited by6 cases

This text of 401 S.W.2d 195 (Sullivan v. Harpeth Development Corp.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Harpeth Development Corp., 401 S.W.2d 195, 218 Tenn. 107, 22 McCanless 107, 1966 Tenn. LEXIS 552 (Tenn. 1966).

Opinions

Mr. Justice Creson

delivered the opinion of the Court.

[109]*109This appeal comes from the Chancery Court of Davidson County. Appellants sought an injunction in that Court against appellee’s operation of a cemetery on land directly across Highway 100 from appellants’ home, on the basis that the appellee had not obtained the requisite permission from the proper authorities required under T.C.A. sec. 46-101.

The Trial Court dismissed appellants’ Original Bill, basing this dismissal upon a finding that the appellants lacked standing to sue. Appeal has been perfected directly to this Court, as the case was heard below on a stipulation of facts.

It is agreed in this stipulation that appellants are the owners of a house and lot situated on Highway 100 within the limits of the Metropolitan G-overnment of Nashville, Davidson County, Tennessee. Appellee, a Tennessee corporation, was authorized to engage in the cemetery business for profit. On December 9,1964, it acquired a 25-acre tract situated directly across Highway 100 from appellants’ home. During the winter and spring of 1965, appel-lee undertook development of this tract as a cemetery. It is stipulated that the appellee’s employee, if called as a witness, would testify that he had informed the appellants on December 9, 1964, in some detail, that the development of a cemetery on this land was planned. Appellants admit that they were informed by appellee that it was planning to develop a cemetery on the previously referred to tract of land, around January 1, 1965.

On April 15, 1965, appellants filed this suit seeking an injunction prohibiting the appellee from operating, maintaining, or otherwise engaging in the cemetery business at the location in question. In the Trial Court, the appel[110]*110lants relied solely upon the provisions of T.O.A. sec. 46-101, which read as follows:

“Powers of cemetery corporations — Purchase of land — Location—Laying off and subdivision — Sale of lots. — Cemetery corporations shall have the power to parchase land, not exceeding two hundred (200) acres, situated not less than one (1) mile, to be measured by way of the most direct public thoroughfare to the said land, from the corporation line of a town containing fifteen thousand (15,000) inhabitants, and not less than one mile and a half (1%), to be measured by the way of the most direct public thoroughfare to said land, from the corporate line of a city or town containing a greater number of inhabitants, to be used as a cemetery forever; to lay the same off in suitable avenues or walks and embellish with trees, shrubbery, and flowers, and to subdivide the land into lots suitable for graves, monuments, and vaults, and sell the same in such manner as the board of directors may determine; provided, that said population shall be estimated by the federal census of 1950 or any subsequent federal census; and, provided further, that any land may be purchased and used as a cemetery at any place within or without said corporate line, after the proposed location shall have been approved by resolution of the governing body of such city or town.”

The Chancellor found that this statute granted to the governing bodies of cities the right to approve or reject land for use as a cemetery, but did not confer on the appellants standing to sue to prevent an attempted use. The Chancellor took the view that the statute did not authorize a private individual to bring suit to restrain a [111]*111defendant from conducting a business without obtaining the required permission of the city’s governing body.

On appeal, the appellants rely upon the following Assignments of Error:

“1. The Chancellor erred in holding that the appellants had no standing to bring this suit.
2. The Chancellor erred in not holding that appel-lee’s use of the property in question for cemetery purposes without obtaining approval of the governing body of the Metropolitan Government of Nashville and Davidson County, Tennessee, is illegal.
3. The Chancellor erred in not enjoining the appellee from operating’ or maintaining a cemetery on the property in question as prayed for in the original bill.”

In support of these Assignments of Error, appellants now rely upon Chapter 405 of the Private Acts of 1925 which reads, in part, as follows:

“Section 1. Be it enacted by the General Assembly of the State of Tennessee, That hereafter no cemetery shall be established, nor shall any existing cemetery be enlarged, in any county in this State having a population of 220,000 or more persons by the Federal Census of 1920, or any subsequent Federal Census, unless and until such establishment or enlargement shall have been approved by the Quarterly County Court of such county, and by the Quarterly County Court and legislative body of any incorporated city in such county, if such cemetery shall lie within such incorporated city, or within five miles of the corporate limits of such city. Any person, firm, corporation or association intending to lay out a cemetery, or enlarge [112]*112an existing cemetery within such county, shall first file a verified petition with the Quarterly County Court or with such court and the legislative body of any incorporated city within such county, as the case may be, setting forth the plans for such cemetery, by whom to be owned, operated or conducted, the general plan for the operation of such cemetery, which shall be accompanied by maps or plats showing its location and subdivision, and the boundaries thereof. * * *”
Sec. 3. Be it further enacted, That it shall be unlawful to lay off, establish, operate, sell lots in, or permit the burial of the dead in any cemetery established, laid out or enlarged after the passage of this Act unless and until the approval of the county and municipal authorities shall have been secured as hereinbefore set out. And any county or city, or any person aggrieved by the establishment of a cemetery or enlargement of an existing cemetery in violation of the provisions of this Act may file its or his injunction bill to restrain the same in any court of competent jurisdiction; and any court now or hereafter having general jurisdiction of injunction bills shall have jurisdiction and power to enjoin the establishment or enlargement of a cemetery in violation of the provisions of this Act, and to abate as a public nuisance the use of any land for cemetery purposes in violation of the provisions of this Act. ’ ’

It is the contention of the appellee here that the Court cannot properly consider questions based upon the provisions of this Private Act, raised for the first time on appeal. This contention of appellee may be well founded for it is a well-settled rule of this Court that it will not, on appeal, consider matters not raised in the [113]*113Trial Court; and thus presented for the first time on appeal.

However the above may be, it is left for this Court to determine if these appellants had, contrary to the decision of the Chancellor, standing to sne, under T.C.A. sec. 46-101. T.C.A. sec. 46-101 is a part of the statutes dealing with the organization of cemetery corporations, their power and functions. It is in no way associated with any zoning statutes or statutes authorizing zoning regulations. The caption of this Section reads, “Powers of Cemetery Corporations.

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Bluebook (online)
401 S.W.2d 195, 218 Tenn. 107, 22 McCanless 107, 1966 Tenn. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-harpeth-development-corp-tenn-1966.