Shiel v. Walker

ELLISON, J. This is a proceeding begun under Revised Statutes 1899, section 5217, to condemn lands for the enlargement of a public burial ground. And, also, under section 5217a of Sessions Acts, 1901, p. 54, to condemn an existing burial ground. The trial court sustained a demurrer to the evidence offered in behalf of the petitioners and they appealed. It appears that about thirty years ago defendant platted into burial lots about two acres of his farm. That the plat contained two hundred lots of sufficient size for eight graves or burials. That of these defendant has sold and deeded to various persons, up to the beginning of this proceeding, one hundred and thirty lots. That in 1903 defendant laid off an addition to said burial ground of two acres, containing one hundred and fifty lots, which are held for sale by him upon like terms as the original lots, though up to the beginning of this proceeding none had been sold. [525] These petitioners, to the number of five, as before stated, seek to condemn the original grounds as a public burial ground and to condemn the .addition laid off thereto, as an extension of such original grounds. The following are the sections of the statute referred to above: Section 5217, Revised Statutes 1899: “Whenever it shall become absolutely necessary to enlarge any public burial ground or cemetery, and when the public, to the number of five or more persons, interested in the enlargement of said burial grounds or cemetery, and the owner or owners of the adjoining land, cannot agree as to the price to be paid for the same, or for any other cause cannot secure a title thereto, the public, to the number of five or more persons, may proceed to condemn the same, in the same manner as provided by law for condemnation, appropriation and valuation, in cases- of lands taken for telegraph and railroad purposes; and on such condemnation, and the payment of the appraisement as therein provided, the title of such land shall vest in the public for the purposes and uses only for which it was taken.” Section 5217a of Session Acts, 1901: “When lands shall have been continuously used as a public burial ground for a period of ten years or more and such land has not been deeded to the public for the purpose of a burial ground, a title may be obtained to such lands in the way and manner as is provided for the enlargement of burial grounds in chapter 86, section 5217 of the Revised Statutes of Missouri 1899.” It will be observed that it is one of the objects of petitioners to condemn the title to the entire original burial ground now owned by defendant and a large number of other persons, to whom he has sold the greater number of the lots. Notwithstanding that the title to a greater part of the property is in these various parties and their deeds are of record, yet none of them are made parties and it is sought to destroy their title by a pro [526] ceeding in which their grantor only is a party. The trial court rightly held that this could not be done. But there is another reason, also given by the trial court, why the proceeding cannot be maintained. The defendant, as the owner of the land upon which is the original burial ground and the new addition thereto, platted it and filed the plats with the county recorder as contemplated and directed by section 8963, Revised Statutes 1899. It was not the object of sections 5217 and 5217a, above set out, to allow five citizens to cause such grounds to be taken from the owners. If such proceedings could be tolerated, the title and management of the various cemeteries belonging to different organizations and societies, as well as incorporators, would be without security of title and liable at any time to be ousted from them. Those sections doubtless have reference to burial grounds found throughout the State, which have been set apart for such purpose, but have not been platted and kept under the ownership and supervision of the proper owner or owners — grounds, which the public used and yet no one in particular with any superior right therein, or interest in the management thereof. The provisions of the statute were intended to make certain the title to such property and to vest a right in the public to use them. And so the right was given to enlarge such grounds from the surrounding lands when it became absolutely necessary. It is doubtless true that cemeteries are subject to the police power of the State and that they ,are not exempt from the power of eminent domain (Campbell v. Kansas City, 102 Mo. 326). It is furthermore true that the State may exercise the power of eminent domain in condemning land for burial purposes, as is stated in briefs of counsel. But the pertinent inquiry in this case is to ascertain what the State has intended by the enactment of the statutes, to which we have referred. We do not believe that it was intended to condemn an existing cemetery platted and used as the statute directs. [527] It was not intended to put it in the power of a few persons to have condemned for a cemetery a cemetery already in existence and owned and controlled as the law directs, and which in many instances has cost vast sums of money. The statute, as already stated, finds ample application to that large number of instances in the State where grounds have been permitted to be used for burial purposes but have not been platted and recorded. It has doubtless frequently happened that a person owning the tract of land on which was a burying ground would sell it and the purchaser would conclude to stop such use; and so heirs coming into ownership of -such lands may sometimes interfere. Under this statute, where such grounds had been so used for ten years, parties may proceed to have the title put regularly in the public. The judgment should be affirmed. All concur.