Humphrey v. Board of Trustees of Front Street Methodist Episcopal Church

Clark, J. after stating the case, proceeded : There is no just ground for the exception to the issues. It is settled by repeated decisions of this Court that, while the issues must arise upon the pleadings, the trial Judge may, in his discretion, submit either one or many, subject only to the restriction that sufficient facts shall be found to enable the Court to proceed to judgment, and that neither party shall be denied the opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions. McAdoo v. Railroad, 105 N. C., 140; Denmark v. Railroad, 107 N. C., 187; Leach v. Linde, 108 N. C., 547. The issues submitted were in compliance with these requirements, especially after the admissions made by the defendant. The fewer the issues, if sufficient to develop the case, the better, as a jury may be confused by a multiplicity of issues. The two prayers for instructions were, properly, not given, as they were not applicable to any evidence sent up, nor to any issue, either those asked by plaintiffs or those submitted, and the Court was not called upon to charge as to abstract propositions of law. While there was conflicting evidence whether the remains of Bryan L. Koonce were removed with the consent of the plaintiffs, there appears no evidence that the plaintiffs removed them involuntarily or induced by threats or promises. It seems, from the.jevidence, *138 that the remains were removed by the defendant, and the finding of the jury, construed in connection with the charge, was, that such removal and the incidental damage to the vault were, with the consent of the plaintiffs, for the Court told the jury, “if the vault or remains were removed with plaintiffs' consent, to answer the first issue, No; but if defendant wrongfully removed the remains, to respond Yes to such issue.” The jury responded to the issue “No.” Whether plaintiff had an easement, or a mere license (as was held in Kincaid’s Appeal, 66 Pa., 411), it is subject to the police power of the State, which, by Act of Assembly, has authorized the ordinance of the city forbidding interments at that spot. This is an inherent power in the State, and is very generally exercised with the growth of towns, by forbidding further interments within city limits after a given date;' otherwise, a burial-ground, which, in the infancy of a town, may be outside the limits, might continue a place of interment, to the nuisance of the city, after the cemetery has become the central point of population, and surrounded on all sides by dwellings and places of business. Pres. Church v. New York, 5 Cowen, 538; Woodlawn v. Everett, 118 Mass, 354; City Council v. Church, 5 Strob. (S. C.), 306; Coates v. New York, 7 Cowen, 585, Cooley Const. Lim., 595; and the legislative discretion even extends to the power to authorize the removal of bodies already interred. 5 Am. Rep., 377; Richards v. Church, 32 Barb., 42; Page v. Symonds, 63 N. H. 17; 3 Lawson Rights and Rem., § 1343 ; 3 Am. & Eng. Enc., 53, and numerous cases there cited; though usually, as in this case, the Legislature restricts the authority conferred to the prohibition of future interments. Besides, the conveyance under which the easement is claimed only grants “ the right to inter in said vault so long as it shall be used for the purpose of interment.” By virtue of the burning of the church and its subsequent removal to another lot, as well as by the city ordinance forbidding interments within city *139 limits, the lot in question has ceased to be used for interments, and if an easement was granted it has ceased, certainly as to future interments, by its own terms. There is no question arising, therefore, whether an easement could be surrendered or extinguished otherwise than by deed. The gravamen, however, of plaintiffs’ action is as to the removal of the remains of the plaintiffs’ ancestor, heretofore interred. As to that, the jury has found that such removal was with plaintiffs’ consent. They have, therefore, no ground of complaint in that respect. As to the first error assigned as ground for a new trial, “ that the verdict was against the weight of the evidence,” that was a matter with the Judge below, and not reviewable. Whitehurst v. Pettipher, 105 N. C., 40; High v. Bailey, 107 N. C., 70; Redmond v. Stepp, 100 N. C., 212; McKinnon v. Morrison, 104 N. C., 354. No error.