Kelly v. Tiner

The opinion: of the Court was delivered) by Mr. Justice Watts. This is a suit for permanent injunction. His Honor, Judge Shipp, sustained the demurrer to the complaint interposed by the defendants, and for a proper understanding of the case it will be necessary that the complaint, demurrer and order of Judge Shipp and the exceptions be reported with the case, He allowed an amendment to the complaint on motion of plaintiffs. The exceptions allege error in his decision. He based his order sustaining the demurrer on the ground, “the oompla'int did not state facts sufficient to constitute a cause of action, because it appears upon the face of the Complaint that there is no allegation of peculiar and special damages sustained by the plaintiffs which would entitle them' to injunctive relief.” 'Did the complaint state a cause of action before the amendment and afterwards? We think SO'. The plaintiffs allege that 'they are grandsons' and heirs at law of Jacob Kelly, and they allege that Jacob Kelly, during his lifetime, set apart and dedicated for the use of the public, two acres of land as a graveyard for the burial of the dead, and that it has been used as such for eighty or ninety years, and during all that time known as the “Kelly Cemetery,” and during thalt time parties having dead buried there have kept up1 the graves by cleaning off the same and by fencing the same. That the right to use this property as a graveyard has never been questioned for over fifty years. That the plaintiffs', parents, grandparents, great-grandparents, and other kin *49 dred, are buried there, and each of the plaintiffs have children buried there, and expect to be buried 'there themselves, and their descendants expect to be buried there. That the defendant is trespassing upon and destroying the wire, shrubbery, trees, etc., and making it unfit for the purpose it was set apart and used for, and intends, to ’continue1 his degradations until the graveyard is made a cotton patch. We think the plaintiffs allege sufficiently peculiar and special damages to entitle them to injunction. They allege they have kindred buried there, children,, parents and other ancestors. The allegations show they are interested in the graveyard as a whole and particularly in the plat where their dead lie. I do not know of anything that, would disturb and arouse the feelings of a properly constituted person more than the intentional' trespass and violation of the graves of their dead. It shocks ’and outrages the feelings', and arouses the indignation of every, right miinded person in a Christian! country, that the resting place of the dead should be interfered with', and the place set apart for this purpose converted into arable land, plowed over and cultivated and wiped out and obliterated as a cemetery. I not only think when a graveyard is set apart for the use of the public that those who have kindred buried there can1 maintain a suit for any unlawful interferences and'trespass'; but I think 'any one who has friends, buried 'there can interfere and allege peculiar and special damages’. These plaintiffs complain on behalf of themselves .and on the behalf of the public in general, who have dead buried there. Where it is impracticable to bring 'all the parties before the 'Court, by reason of numbers, one or more can complain on behalf of themselves and such others as- may come in. Judge -Shipp based his. -decision on the principles, laid down in Steamboat Co. v. Railroad Co., 46 S. C. 327, 24 S. E. 337; 33 L. R. A. 541; Threatt v. Mining Co., 49 S. C. 131, 26 S. E. 970; Baltzeger v. Railway Co., 54 S. C. 242, 32 S. E. 358, and other cases- affirming that principle. An *50 examination.' of 'these authorities will show that where the public generally sustains injury, that the party complaining must show some special or peculiar damage to himself. In the case 'ait bar the plaintiffs show this. -They complain that their dead buried in. a graveyard, 'set apart for that purpose for over eighty years, are being disturbed and their rights invaded by an unlawful attempt omi the part of the defendant to take possession of the land occupied by their dead, and to tear down and eradicate all evidence of their resting place, and to plant the land in -crops-. Not only to disturb their dead, but the dead of others buried in the same graveyard. The very thought of the unlawful intermeddling with the resting place of the dead is abhiorent to the feelings of anyone, and this, in my opinion, is sufficient to' show special and peculiar damages to the plaintiffs. The law and Christianity devolves upon persons the duty to put away their dead, and give them the right to protect the resting place of their dead from the wanton and wilful depredations of strangers-. “If one has been permitted to bury- his -dead in -a cemetery by tire express or implied consent of those in proper control of it, 'he acquires such possession in 'the spot of ground in which the bodies’ are buried, as will entitle him to maintain an action of'trespass 'qua/re clausum fregif against the owners of the fee or strangers, who without his consent, negligently or wantonly disturb it.” Davidson v. Reed, 53 American Reports 613. In the same case we find, “One who has dedicated land to' the public for burial purposes, the dedication having been accepted, may be prohibited from defacing or meddling with the graves thereon, at the suit -of anyone having relatives or friends buried there.” In the case of Davidson v. Reed, 56 American Reports 33, we find, “that ’the -public accepted and used the land for the- purpose for which it was designated by the owner is also' beyond dispute. It has been- suggested that the bill cannot' be- maintained in the name of the two complainants. The complainants were residents- of the neighborhood; they had friends buried in *51 the burying ground, arad were thus interested in preserving, for themselves and the public, -the burying ground as it had beeo established, and we are of the opinion that they had the right to sue in behalf of themselves and others having a like interest. The bill was brought, and, in our judgment, properly, for the protection of the rights of the people in that particular locality, and we perceive no reason why it may not be maintained in the names of a part for the benefit of all, as well as if all directly interested 'had joined in the bill.” In the case at bar the plaintiffs have a general interest as citizens of the community in which the cemetery is located, and have a special and peculiar interest because their parents, children and grandparents are buried there. We think the Circuit Judge was clearly in error. The other point involved here is decided in Ex parte McColl, 68 S. C. 489. The judgment of the Circuit Court is reversed.