Evergreen Cemetery Ass'n v. City of New Haven

Carpenter, J. The city of New Haven, under the general power conferred upon it to lay out, construct and maintain all necessary highways within its limits, proceeded to widen and straighten Winthrop Avenue, one of its streets, and, in doing so, took a triangular piece of land belonging to the petitioners eighteen and a half feet wide at one end and about nine hundred feet long. The land so taken is a part of the land consecrated to the burial of the dead, is now used and occupied by a border eight feet wide of shrubbery, evergreens and other ornamental trees in part, and in part by a portion of Evergreen Avenue laid out in the cemetery for the purpose of affording a large number of the owners of burial lots in the cemetery access to their lots; and without this avenue the owners of a very large number of lots wnuld be greatly inconvenienced, and practically deprived of all access to their lots in carriages. Thereupon damages were awarded to the petitioners and benefits were assessed against them. This petition is brought to annul the assessment of damages and benefits, on the ground chiefly that the city had no authority to take the land for highway purposes. The power [241] which the city has to take the land is the same as that conferred by general statute upon towns, there being no special power granted to take any part of this cemetery for such purposes. The petitioners are incorporated under the statute authorizing and regulating the organization of associations for the purpose of procuring and establishing burying grounds or places of sepulture. The association holds the land, comprising the cemetery, subject to the provisions of the law authorizing its organization, and it is now held by the association, except such parts thereof as have been sold to be used and occupied as places of burial, which comprises a large part thereof. It is further found that the land so taken is needed for the purposes of the cemetery, and is not needed for the purpose of widening and straightening Winthrop Avenue. The use of land for a burying ground is a public use, and, for such a purpose, it may be taken, if need be, under the right of eminent domain. The fact that this land is held and used under a deed from the former owner, and was not taken by proceedings in invitum, cannot affect the nature of the use. It is held by as high and sacred a tenure as it would have been if the sovereign power of the state, in the exercise of the right of eminent domain, had been called to the aid of the petitioners in acquiring it. The question then is, whether land already devoted to a public use can be taken by the public for another use which is inconsistent with the first, without special authority from the legislature, or authority granted by necessary and reasonable implication. There are cases in which it would seem that lands used for a burying ground, have been taken by the municipal authorities for highway purposes. In the Matter of Albany Street, 11 Wend., 149; In the Matter of Beekman Street, 4 Bradf., 503. But whether they were taken under a general or special authority does not appear; nor does it appear that there was a necessity for taking them in order to exercise the powers [242] granted; but it does appear tliat the question whether the public had a right so to take them without the consent of the owners, was not made and decided in either of the cases referred to. That the legislature has the power to authorize the taking of land already applied to one public use, and devote it to another, is unquestionable. Boston Water Power Company v. The Boston & Worcester Railroad Company, 23 Pick., 360; Springfield v. The Conn. River Railroad Company, 4 Cush., 63; The City of Bridgeport v. The New York & New Haven Railroad Company, 36 Conn., 255. And this power may be granted either by express words or by necessary implication. When the power is granted to municipal or private corporations in express words no question can arise. In this case it is not claimed that the respondents were expressly authorized to take the petitioners’ land. The question then arises whether, by a reasonable construction of the statute authorizing the respondents to lay out streets and highways, they had the power to take any portion of the petitioners’ land for that purpose. The language is general and broad enough to embrace all lands, whether used for one purpose or another; nevertheless there are cases in which it will be presumed that the legislature intended that it should not apply. It will be presumed that land applied to one public use should not be taken and devoted to another use inconsistent with the first unless there is a necessity for it. Thus it will be presumed that the legisture did not intend to authorize a town to lay out a highway along the track of a railway, or along the bed of a canal, as the two uses cannot well exist together. The one necessarily excludes the other. So also a railroad company, unless expressly authorized, cannot lay its track upon a highway; and when permitted, except in special cases, a substitute road must be provided. On the other hand, a highway may cross a railroad or a canal, as there is a manifest necessity for it, and it may be done without destroying the franchise, in whole or in part, and without seriously interfering with its exercise. [243] The same land cannot properly be used for burial lots and for a public highway at the same time. The two uses are inconsistent with each other, and the one practically excludes the other. Land therefore applied to one use should not be taken for the other except in cases of necessity. That brings us to inquire whether the necessity exists in the present case. The facts show not only that it does not exist but that there is hardly an apology for taking the land in question. If taken, it renders a very large number of lots in the cemetery inaccessible to carriages. That inconvenience can be remedied only by making a new avenue. That can only be done by taking six lots sold to private parties, all of which have been actually used for burial purposes. How the association is to acquire the title to those lots, unless the owners voluntarily part with it, it is not easy to see. On the contrary there is no difficulty in effecting the desired improvement by taking land on the other side of the street. On this point the finding of the committee is emphatic. They find that “Winthrop Avenue could have been straightened, and widened, and the proposed public improvement made, by taking all the land needed and required for that purpose from the land on the south side of the avenue, belonging to private owners, and without taking any of the land from the cemetery association; and that the public good, convenience and needs would have been as fully advanced and promoted thereby as by the lay-out made.” It can make no difference that the part taken was used for shrubbery and a carriage way. A cemetery includes not only lots for depositing the bodies of the dead, but also avenues, walks, and grounds for shrubbery and ornamental purposes. All must be regarded alike as consecrated to a public and sacred use. The idea of running a public street, regardless of graves, monuments and the feelings of the living, through one of our public cemeteries, would be shocking to the moral sense of the community and would not be tolerated except upon the direst necessity. Yet the right to do so must be conceded if the action of the respondents in the present case can be vindicated. The right to take one part of a cemetery [244] implies a right to take another; and the right to take one part implies the right to take the whole. For these reasons wo hold that the action of the respondents in taking a part of the cemetery grounds for a highway was illegal; and the Superior Court is advised that the assessment of benefits and damages should he annulled. In this opinion the other judges concurred.