
    Robert Went, Resp’t, v. Methodist Protestant Church of Williamsburgh et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894)
    
    1. Cemeteries—Deed—Title.
    A deed, from a cemetery association, of a lot in the cemetery conveys only the right of burial.
    2. Same.
    A statute directing the removal of the bodies, without any provision for compensation to the lot owners, is constitutional.
    Appeal from a judgment perpetually restraining defendants from selling certain land, used for cemetery purposes in the city of Brooklyn, or for using said land for any other purpose except for cemetery purposes. ,
    
      William Erdman, for app’lts; W. S. Lewis and H. F. Lawrence, for resp’t.
   Brown, P. J.

The power of the legislature to prohibit interments in or to remove the dead from cemeteries which, in the advance of urban population, may be detrimental to the public health, or in danger of becoming so, is not at this day a debatable question. Windt v. German Reformed Church, 4 Sandf. Ch. 471; Richards v. Dutch Church, 32 Barb. 42; Brick Church v. Mayor, etc., 5 Cow. 538; Coates v. Mayor, etc., 7 id. 585; Sohier v. Trinity Church, 109 Mass. 1; Woodlawn Cemetery v. Everett, 118 id. 354; Kincaid's Appeal, 66 Pa. St. 411; Craig v. Presbyterian Church, 88 Pa. 42; Tied. Lim. § 122d; Dill. Mun. Corp. §§ 306, 307. In Kincaid’s Appeal the supreme court of Pennsylvania said that no one can doubt the power of the legislature to prohibit all further interments, within the limits of towns and cities, and, as the constitutionality of that exercise of legislative power was unquestioned, it was not doubted that the legislature could proceed a step further, and declare a burying ground to be vacated as such, and direct the removal of the bodies therefrom. The plaintiff does not seriously question the existence of this legislative power, but it is apparent that in this instance, unless the defendant can sell the cemetery lands, the direction for the removal and reinterment of the bodies cannot be carried out. The validity of an act authorizing a sale of cemetery lands, when challenged by the individual lot owner, depends upon the character of the title which the latter has to his burial plot. While it is apparent that the legislature, in directing the removal of the dead, must provide for the expense, and while I have no doubt that it may impose that expense upon the lots from which bodies are removed or upon the owner thereof, it must proceed bylawful methods; and, if the lot owner has a title to the land, he cannot be deprived of his property without his consent, and a direction by the legislature to the corporation or association having general charge of the cemetery to sell and convey it would have no valid force or effect. The constitutional provision in relation to making compensation for property taken for a public use does not seem to me to have any application to the question. The abatement of the nuisance arising from the burial of great numbers of dead bodies in a thickly populated district is the question which concerns the public, and the one over which the legislature has power; and that is satisfied by the removal of the bodies. No property is taken for public use, unless it can be said to be taken for the purpose of acquiring new burying grounds, and to pay the expense of removal. But to take it for that purpose would be in the nature of a tax or assessment, to impose or enforce which the legislature should provide for regular proceedings, in which the lot owner should have opportunity to be heard. The legislature, in directing a sale of the land in question, has assumed that the church corporation had the title. If that is not the fact, then the power of sale cannot be executed. The reported cases are not harmonious upon the question as to the character of the title which a lot owner has to a burial plot in a cemetery controlled and governed by a corporation. The courts have differed as to whether it was an easement analogous to that of a pew owner in a church, or whether it is an ownership in the soil. Mr. Washburn, in his work on Easements (page 515), states the rule as follows: “Right of burial in churchyards and pew rights in churches, although acquired by deed of a particular lot, are only easeménts in land belonging to the society which governs the church or church yard. It is an easement in, and not a title to, the freehold, and is to be understood as granted and taken subject (with compensation, of course) to such changes as the altered circumstances of the congregation or the neighborhood may make necessary.”

To the same effect are Kincaid's Appeal, 66 Pa. St. 411-423; Craig v. Presbyterian Church, 88 id. 42; Sohier v. Trinity Church, 109 Mass. 1-21; Price v. Methodist Church, 4 Ohio, 515; Richards v. Dutch Church, 32 Barb. 42; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503. To the contrary are In re Brick Presbyterian Church, 3 Edw. Ch. 155; Windt v. German Reformed Church, 4 Sandf. Ch. 471. In the Case of Brick Presbyterian Church the deed to the lot owner was in form similar to that held by the plaintiff. The vice chancellor, after a review of many authorities, and distinguishing the case from that of a pew holder or owner of a tomb, held that the deed gave to the lot owner title to the land, and not a mere easement or privilege of burial. In the Case of German Reformed Church the plaintiff had no deed, and an injunction to restrain the sale of the land was refused ; but Yice Chancellor Sandford expressed the opinion that the result would have been otherwise if the plaintiff held a deed for his plot. These cases cannot, I think, be reconciled with the case of Richards v. Dutch Church, 32 Barb. 42. There the plaintiff held title to his lot by deed, which granted it to him, “ his heirs and assigns, forever,” and stipulated .that the vault should “never be dug up, disturbed or destroyed.” An injunction restraining a sale by the church was denied. In Kincaid's Case the evidence of title was a certificate under seal of the church that the lot owner was entitled to two lots of a certain size and number, to hold for the uses and purposes mentioned in the deed of trust'to the church. In the Case of Trinity Church of Boston the tombs were constructed under the church edifice, but the plaintiff held title by deed. The question of title cannot be determined solely by the terms of the deed given to the lot owner. Reference must, of course, be had to the act of the legislature creating the corporation from which title is-derived, and to the limitations upon its power, and to the manifest intent of the parties to the instrument. Every owner of a cemetery lot must be deemed to have purchased and to hold it for the sole purpose of using it as a place of burial, and, as was said in Kincaid's Case, he is bound to know at his peril that it may become offensive by the residence of many people in its vicinity, and that its use must yield to laws for the suppression of nuisance's. Every cemetery within or near large cities must give way to the advance of population. Interments ultimately must cease, and the remains of the dead that are capable of removal must be reinterred in new grounds. Every lot owner holds his title subject to that contingency, and no conditions or covenants contained in deeds appropriating the lands to particular uses can prevent the legislature declaring such use unlawful, and compelling the removal of all bodies from the grounds. All individual rights of property, whether they rest on absolute conveyances or mere licenses, are subject to laws of this character; and the principle known as the “police power,” upon which the legislative authority to enact such laws rests, has of late years been considered by the courts in numerous cases, many of which are on the briefs of counsel.

Assuming, therefore, as we must, that the use of the cemetery as a burial place may be interdicted, and the bodies of the dead removed, it cannot, I think, be seriously claimed that it was within the contemplation of parties to a deed for a burial plot that when that contingency should arise the individual owner should hold title to his lot for general uses,, tbe same as he would hold other property. Individual ownership, under such circumstances, would only create confusion of title, and eventually leave a large tract of land without the care or supervision of a responsible owner. The lots would be small, and of no use for building purposes, inaccessible in many instances from the city streets, and, where the original grantee had died, probably owned by many persons having widely separated residences, and in many instances unknown. A construction should not, therefore, be put upon deeds of this chaz-aeter that would produce such a result, unless the rules of law applicable to such instruments forbid any other conclusion. By the Laws of 1853 and 1878 relating to the incorportion of Union Cemetery it was enacted that it should be a rural cemetery, within the meaning of the act for the incorporation of rural cemetery associations, and it. was made subject to the restrictions and given the rights and franchises of such associations. An examination of the act of 1847, authorizing the incorporation of such associations, and the amendments thereto, shows that it was the intention of the legislature that the title to the land should remain in the association, and that the lot owner should hold only an easement for the purpose of burial. The power reserved by the association by §§ 8, 9 and 10 are powers that belong to the owner of the fee. It may sue for trespass committed on the lots conveyed to individuals, and' it may enter upon the lots at any time to improve or embellish them, orto erect buildings, fence's, walks, etc. The lots are exempt from taxation as property of the association. The provision of section 11, to which our attention is called, that a lot in which an interment has been made is forever thereafter inalienable, is not a limitation upon the power of the legislature to order a sale of the property. The Case of Matter of Deansville Cemetery Ass'n, 66 N. Y. 569, cited in the opinion of the special term, and relied upon by the respondent, does not decide anything contrary to the views here expressed. That was an application to condemn lands for cemetery purposes, and the court decided that the act of the legislature purporting to grant that power was unconstitutional on the ground that the use for which the land was to be taken was private, and not public. Nothing in the opinion can be construed as bolding that the individual owner held title to the soil oE his burial lot. It was said that their “ rights ” descended to the heirs as private pi’operty, and that the substantial right of enjoyment of the property was vested in individual lot owners. But this language is as applicable to an easement as to an ownership of the soil. The question of title was, however, presented in the pase of Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503. In that case the association, which was organized under the Rural Cemetery Act, sought to have an assessment set aside on the ground that it should have been made against the individual lot owner. This claim was overruled, and the assessment sustained, Judge Folger saying that the effect of a conveyance under the statute was -to confer upon the lot owner a right to use for the purposes of interment. “ No such estate is,” he said, “granted as makes him an owner in such sense as to exclude the general proprietorship of the association. The association remains the owner in general, and holds that relation to the public and to the government; while, subject to this, the individual has the right, exclusive of any other person, to bury upon the plot assigned to him. He holds a position analogous to that of a pew holder in a house for public worship.” This case, in my judgment, is conclusive as to the plaintiff’s title. It is true that there was no conveyance before the court in that case, and that the plaintiff’s deed is sufficient to convey a freehold; but construing the latter conveyance in the light of the statute authorizing the creation of rural cemetery associations as interpreted by the court of appeals, and the evident purpose of the parties to the contract, it cannot I think be truly claimed that the plaintiff purchased more than an easement for burial purposes, or that the grant was intended to convey a fee. The intent of the contract is carried out, and the purpose of the parties thereto effectuated, by holding that the legal effect of the instrument was to grant an easement in the land only. To this construction of the plaintiff’s deed the Case of Bride Presbyterian Church, 3 Edw. Ch. 155, does not apply. It is settled by a long line of authorities that a pew owner has no claim for compensation when the church is taken down from necessity arising from the condition of the building or other imperative exigency. It cannot be said in any sense that in such case his property is taken for a public use. Kincaid’s Appeal, supra, and cases cited in opinion of Judge Sharswood. In this case the plaintiff’s rights are fully protected by the direction to the defendants to remove the bodies to a new cemetery, and to purchase other land to be used for cemetery purposes. The rights of burial which he loses in the old ground will be fully restored to him in the new, and, in legal contemplation, he suffers no damages. My conclusion is that the act of 1893 was a valid exercise of legislative power, and the action of defendants thereunder cannot be restrained.

The judgment must therefore be reversed, and, as a new trial would be of no avail to the plaintiff, the complaint is dismissed, with costs. All concur.  