
    Windt and others v. The German Reformed Church.
    Dec. 23, 1846 ;
    Jan’y. 8, 1847.
    The sepulture of friends and relatives in a cemetery helohging to a religious society, confers no right or title upon the survivors, and they cannot prevent the sale of such cemetery by the corporation and the removal of the interred remains, where such removal is in other respects conducted according to law.
    The payment of fees and Charges to the corporation or its officers, upon interments, gives no title to the land occupied by the body interred. The payment confers the privilege of sepulture for the body in the mode used and permitted by the corporation ; the right to have the same remain undisturbed as long as shall be required for the entire decomposition of such remains, provided the cemetery shall so long continue to be used as such ; and the right, in case the cemetery shall be sold for secular purposes, to have such remains removed and properly deposited in a new place of sepulture.
    The conveyance of vaults or burying lots in a cemetery by a religious incorporation, confers a perfect right of property on the grantee, independent of any use of the same for sepulture.
    The bill was filed in December 1846, by John Windt, and several other persons claiming under similar rights, and a temporary injunction issued, (with an order to show cause,) restraining the defendants from removing the remains of the dead, from the cemetery formerly owned by them in Twelfth street, near University Place in the city of New York.
    The case made by the bill, was this. The' defendants, a religious incorporation, bought the ground in question in 1823, and devoted it to the purposes of a cemetery for their church and for the public use. It has been used for those purposes accordingly, from thence until quite recently, and a great many deceased persons have been interred there. Each of the complainants, has near relatives whom he has caused to be interred in the cemetery, and each is either a member of the defendants congregation, or has paid to the defendants the usual burial fee of three dollars on having such interments made. The defendants, alleging that they have sold the ground, have given notice that the bodies interred there must be removed by a fixed time, in default of which the defendants will cause them to be removed and re-interred in their new cemetery in Bushwick, Long Island. The time fixed having elapsed, the defendants have commenced removing the remains of the dead, which the bill alleged they have no right to do. It also charged great carelessness, rudeness and misconduct, in the manner in which the removal was making.
    - The defendants on showing cause, read affidavits and documents setting forth, that they as a religious corporation purchased the ground in question, being two adjacent lots, each twenty-five feet front and rear by about seventy-five feet in depth, in April 1824. They own the lots in fee, and have used them as a cemetery, but have sold no burial plats or vaults therein ; nor has any person by any written instrument, acquired any right of interment there. That the lots are remote from their church and congregation, in a densely populated vicinity, and altogether too small for a cemetery. That for the latter purpose, they have purchased a tract in Bush wick, and their corporation being in debt and greatly embarrassed, they were compelled to sell the lots, in order to save their church from sale. That in pursuance of the act of April 11, 1842, respecting cemeteries, and on the written consent of more than three fourths of the members of the corporation, they petitioned the court of chancery, and in October 1846, obtained an order from the vice-chancellor, authorizing them to sell the lots, according to the provisions of that act. They have accordingly sold and conveyed them in fee to Jasper Grosvenor, for $6000, have received the whole price except $500, and have covenanted with him to remove the remains of the dead there interred, within sixty days from October 22, 1846. They gave sufficient notice to enable •the friends of the latter to remove such remains, and were proceeding, in default of their assuming the task, with all proper care and consideration, to transfer such remains to the new cemetery in Bushwick.
    
      E. Norton, for the complainants.
    We claim, 1st. by purchase of the right to inter, and 2nd. by a dedication of the cemetery to the public use.
    The privilege of burial, for which the fees were paid, was not conditional. It was an absolute right, and the use of the ground for the repose of the remains of such persons, cannot he discontinued by the defendants. The right may be regarded as an irrevocable easement. The consent of the corporators to sell, cannot impair such a right; and the covenant of the corporation to remove the dead, does not affect us. The burial of the dead in these lots, gratuitously, was a dedication to the public use as a cemetery, and conferred equally the privilege of repose for those interred pursuant to such permission. Is there to be no such thing as a public burying ground, where the remains of the dead may continue undisturbed ?
    
      W. B. Lawrence, for the defendants.
    The principle of the bill is utterly impracticable; else the whole earth will in time be appropriated for the remains of the dead. The instances of the removal of cemeteries in this city, have been frequent, and they are legal.
    The defendants own this land exclusively. The complainants have no right whatever in it. An interest in land, can only be acquired by deed. (1 R. S. 738, § 137.) Yet the bill claims that the mere interment and payment of the trifling fee for opening the cemetery, gives a perpetual interest in the soil to the deceased or his surviving friends.
    The whole subject was eloquently discussed by Lord Stowell in Gilbert v. Buzzard, 3 Phill. 335, where he denied the right to be interred in iron coffins. No one has any title or interest in the remains of his ancestor. (2 Bl. Comm. 429.)
    The decision of the court on the application and order of sale, is conclusive, and the expediency of the sale cannot now be reviewed. (Dutch Church v. Mott, 7 Paige; Brick Meeting House case, in 3 Edw. Ch. R. 155.) The whole proceeding has conformed to the act of 1842, (Laws of 1842, page 259,) which makes ample provision for the protection of both the living and the dead, and subjects all persons infringing its provisions, to criminal punishment. This court does not interfere to prevent crimes; and besides, the bill is multifarious. (The counsel also cited 2 Mann. & Ryl. 333; 1 Greenleaf’s Laws of N. Y. 73.)
   The Vice-Chancellor.

Thedefendants became seised of the two lots in question in 1824, and converted them to the purpose of a cemetery for their religious society. The complainants have relative,s interred there, but no one of them has any deed of a vault or a portion of the ground, or any title thereto. No such deed or conveyance has been executed to any person. The whole title has remained in the corporation.

The sepulture of friends and relatives, in such a burying ground, confers no title or right upon the survivors. If the latter have any interest in the cemetery, or control over its use and disposal, it can only be as corporators in the society owning the ground.

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, excepten 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 marvellous 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.

Where vaults or burying lots, have been conveyed by religious corporations, rights of property are conferred upon the purchasers. This was the case with the corporation of the Brick Presbyterian Church. (E Edw. Ch. R. 155.) The right is like that to any other real estate, and is as perfect without sepulture, as it is where the grantee has used it for that purpose.

The payment of fees and charges to the corporation or its officers, upon interments, gives no title to the land occupied by the body interred. It confers the privilege of sepulture for such body, in the mode used and permitted by the corporation; and the right to have the same remain undisturbed, so long as the cemetery shall continue to be used as such, and so long also, if its use continue, as such remains shall require for entire decomposition ; and also the right, in case the cemetery shall be sold for secular purposes, to have such remains removed and properly deposited in a new place of sepulture.

This, I am satisfied, is the whole extent of the legal rights and privileges conferred by interment, and the payment of the customary charges, in the burying grounds of our religious corporations.

In common with other corporations of the same class, these defendants were authorized, upon an order obtained from the court of chancery, to sell any of their real estate. The statute providing for the incorporation of such societies, gives them power, among other things, to regulate the perquisites for the breaking of the ground in their cemeteries or church yards, and burying the dead ; and while it conferred the unrestricted authority to sell all their lands, except that it was to be on the order of the court, there was no prohibition or regulation concerning the disposition of the remains of the dead, on a sale of their church-yards or burying grounds. It was thus left for the court of chancery, to exercise all the control and restraint, that could by law be imposed upon the unnecessary or unseemly alienation of cemeteries.

In 1842, the legislature imposed farther restraints. The act in relation to burying grounds, (Laws of 1842, ch. 215, p. 259,) provides that no church, or religious corporation, shall mortgage any burying ground, without the previous consent in writing of three-fourths in number of the congregation or society composing such church or corporation; and to provide for the case of a sale, it requires the like consent, before any dead bodies or human remains shall be removed from any burying ground, which shall within three years have been used for that purpose; with the intent to convert the ground to any other purpose. Both sections apply to cases in which compensation has been made for interments.

It is at least a question, whether, since this act, the court of chancery retains any control over the subject, considered merely in reference to the previous use of land for the purpose of burial • on an application for its sale or mortgage, where the requisite consent has been obtained.

In this instance, the corporation were seised in fee of the lots, and they had parted with no vaults, or other rights inconsistent with their exclusive dominion over them. On an application to this court, showing the necessity of selling the lots to save their church lots from being sold for their debts ; that the size of the lots was totally inadequate for a cemetery; and that three-fourths of their congregation had consented in due form ; an order was made authorizing a sale of these premises. The defendants have made a sale pursuant to the order, have executed a conveyance, and received the price.

I entertain no doubt that their sale was valid, and that they have a perfect legal right to remove the human remains now interred in the two lots, to their new cemetery at Bush wick.

It is painful and deeply abhorrent to the sensibilities of our nature, to have the remains of beloved friends and relatives disturbed in their last homes, and removed by rude and careless hands, to a distant cemetery, not hallowed by any of the associations which encircle the consecrated ground where we have deposited them in sadness and in sorrow. I confess that I have not become so much of a philosopher, as to regard the bodies of deceased friends, as nothing more nor better than the clods of the valley; and that my sympathies were strongly enlisted in behalf of these complainants, vindicating the repose of the bones of their kindred. But I cannot shut my eyes to the clear light of the law as applicable to the case.

The temporary injunction must be dissolved, and the order to show cause discharged, with costs to be taxed.  