
    In the Matter of the Application of The Board of Street Opening and Improvement to Acquire Lands known as St. John’s Cemetery for a Public Park.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    1. Eminent domain—Cemeteries.
    _ A cemetery owned by a church corporation, and in which far a long time thefe have been no interments, may be taken for a public park under the authority of chapter 320, Laws 1887.
    
      2. Same.
    The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain.
    
      Appeal from order of the supreme court, general term, first department, affirming order appointing commissioners of estimate and assessment in proceedings to condemn lands for a public park.
    
      S. P. Nash, for app’lt; D. J. Dean, for resp’t.
    
      
       Affirming 42 St. Rep,, 836.
    
   Earl, Ch. J.

The act, chap. 320 of the Laws of 1887, provides that the board of street opening and improvement of the city of New York “is authorized and empowered to select, locate and lay out such and so many public. paries in the city of New York, south of One Hundred and Fifty-fifth street, as the board may from time to time determine;” and it confers upon the board power to acquire for park purposes by condemnation proceedings under the statute “any and all lands, tenements and hereditaments which said board shall deem necessary to be surveyed, used or converted for the laying out, surveying and monumenting of any parks so selected as aforesaid.* 'The board .instituted this proceeding under the act to acquire for park purposes the title to land below One Hundred and Fifty-fifth street known as St. John’s Cemetery, which belonged to a religious corporation in the city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1801, and was used for that purpose until 1839, during which time about ten thousand human bodies had been buried therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of Eighty-sixth street, and since that time no interments have been made in the cemetery, but Trinity Church has preserved and kept it in order and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the' general authority given by the statute of 1887 this land, which had been devoted to cemetery purposes, could not be taken for a park. The authority conferred upon the board by the act is broad and general. It is authorized to take for park purposes any land south of One Hundred and Fifty-fifth street It is undoubtedly true that this general language would not be sufficient to authorize it to take land which had been previously taken for and was then devoted to a public purpose. Matter of the N. Y., L. & W. R. R. Co., 99 N. Y., 12; Suburban Rap. Tran. Co. v. The Mayor, 128 id., 510; 40 St. Rep; 498. But this was not a public cemetery, and so far as appears in this record had never been devoted to a public use. The public generally never had any right of burial therein. No burials therein could be made except by permits given by Trinity Church, and all the interments therein had been made by its- authority. The cemetery land was, therefore, devoted to a private and not to a public use. Matter of Deansville Cemetery Ass'n., 66 N. Y., 569.

The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign which can be exercised for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its exercise the homes and the dwellings of the living, and the resting places of the dead, may be alike condemned. It seems always to have been recognized in the laws of this state that under the general laws streets and highways could be laid out through cemeteries, in the absence of special limitation or prohibition. So it is provided in § 10 of chapter 138 of the Laws of 1847, entitled “An act authorizing the incorporation of rural cemetery associations,” that “ no street, road, avenue or thoroughfare shall be laid through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without the consent of the trustees of such association, except by special permission of the legislature of the state.” The act, chapter 273 of the Laws of 1866, authorizing the incorporation of associations to erect monuments to perpetuate the memory of soldiers who fell in defense of the Union, contains a similar provision. The act, chapter 843 of the Laws of 1868, provides that no private or public road shall be laid out or constructed upon or through any graveyard or burying ground in this state, unless the remains therein contained are first carefully removed and properly re-interred in some other burying ground at the expense of the person desiring such road. The act, chapter 203 of the Laws of 1878, provides for the incorporation of pipe line companies, and empowers them to take land by condemnation proceedings; and in § 34 it is provided that “ no company formed under the provisions of this act shall locate or construct any line of pipe or pipe line through or under any building, door-yard, lawn, garden or orchard, except by the consent of the owner thereof, in writing, duly acknowledged before some officer authorized to take acknowledgments of deeds, and no pipe line shall be constructed through any cemetery or burial ground.” It is the necessary implication that, bun for the express prohibition contained in these statutes, under the general provisions of law authorizing the construction of streets, highways and pipe lines, cemetery lands would not be exempt from invasion.

We have not overlooked the cases in which the general language of statutes has been limited and curtailed of its literal import so as not to give the statutes effect beyond the intent of the law makers. But here we can find no sure ground for curtailing the scope of the statute which we have to construe. We certainly cannot be sure that the law makers, if they had known of this cemetery, disused for burials for fifty years, "and never more to be used for that purpose, located in the midst of a dense and teeming population, would have preferred that it should remain appropriated for the resting place of the long since dead rather than that it should be devoted to use for the comfort, welfare and health of the living. We cannot say that the taking of such a cemetery for such a use is such an unreasonable, unnatural, impolitic or unjust thing that we ought to hold that the general language of the statute does not authorize it to be done.

We have examined the authorities to which our attention has been called by the learned counsel for Trinity Church, and none of them in the least degree sustain the contention that lands devoted to private cemeteries owned by private individuals, or a private corporation, cannot be condemned under the general language authorizing their condemnation for public use. On the contrary the following authorities give strong sanction to the claim that such lands can be taken under general legislative authority for a public use, unless specially protected by statute. Wood v. The Macon & Brunswick R. R. Co., 68 Ga., 589; In re Opening of Twenty-second St., 102 Penn., 108; Egypt St., 2 Grant’s Cases, 455; 4 Brad. Sur., 503; Schoonmaker v. The Beformed Dutch Church, 5 How. Pr., 269; In the Matter of Albany St., 11 Wend., 148; Windt v. German Reformed Church, 4 Sand. Ch., 471.

What are the limits of the doctrine contended for on behalf of Trinity Church ? If a cemetery has for a century been disused as a place of burial, can it not, if the welfare of the public require it, be taken for public use? Countless millions of the human race have been interred in the earth, and must their remains be inviolably left where they are found so long as they can be distinguished from the earth which contains them? There is no law which prohibits the removal of human remains from a cemetery for lawful purpose and placing them elsewhere. On the contrary the law regulates their removal in certain cases. Laws of 1878, chap. 349; Laws of 1847, chap. 133, § 11, as amended by chap. 566 of the Laws of 1880. The remains of the dead in this cemetery can be removed without violating any law, and certainly without violating the law, Penal Code, § 311, against body stealing.

Trinity Church having given permits for burials in this cemetery without granting any interest in the lots in which the burials are made, could at any time remove the remains of the dead and place them in a suitable manner in some other cemetery. No one has acquired any right from it that their remains shall forever remain there. It could not remove them and leave them exposed in the street, or elsewhere. Such an act would shock public sentiment, and could probably be restrained by action in the name of surviving relatives. But that it could decently remove them and place them in some other proper place cannot be doubted. As said by the learned vice chancellor in Windt v. German Reformed Church, supra, “ The only protection afforded to the remains of the dead interred in a cemetery of this description is by the public laws prohibiting their removal, except on the prescribed terms; and in a still stronger public opinion. Probably these furnish all the protection which is consistent with the exigencies of a large city, the population of which increases with marvelous rapidity, and whose wants leave but little room for the remains of the dead, in the dense and crowded haunts and thoroughfares of the living.” By this proceeding the city of New York will acquire all the title of Trinity church, and it will thus be clothed as owner of the land with all the rights Trinity Church had ; and thus it will and must find.some way to dispose of the remains in a manner that will not shock the refined sensibilities or the pious sentiments of the living. It is not needful, however, to determine now what the precise duties and obligations of the city will be in reference to these remains. It is enough now to determine that there is no. obstacle in the way of the condemnation of the title to the fee of the land in this cemetery.

The order should, therefore, be affirmed, with costs.

All concur.  