Burke v. Wall

The opinion of the court on the original hearing was delivered by Morgan, J., and on the rehearing by Egan, J: In December, 1857, the plaintiff purchased a lot of ground in the St. Patrick’s cemetery. The lot is the No. 18, in block No. 8. He avers that he has caused to be erected on this lot a costly tomb. That he has enjoyed the servitudes belonging to the lot since-his purchase thereof. He avers that James Wall and others are attempting to destroy the conveniences of his tomb by interring the dead and erecting tombs and monuments on one of the avenues leading thereto, thus destroying his use of the avenue, which is dedicated to public use. He says that the acts of the defendants have caused him damages in the sum of one thousand dollars, for which he prays judgment. He also prays for an injunction prohibiting them from erecting tombs or monuments on the avenue named in his petition. The defendants deny generally the allegations in the petition, and they specially deny that the plaintiff has a.ny right or title to the property described, or the privileges, appurtenances, or right of way as described and set forth in his petition. We do not think the defendants can question the plaintiff’s title, or' that it is questionable. He holds under a regular conveyance from a person who, we think, was authorized to sell, and his possession has been undisputed and undisturbed from the date of purchase (1857) until the acts now complained of. Plaintiff purchased his property according to a plan which was shown him at the time. According to that plan the cemetery was divided into blocks, intersected by avenues. The lot he purchased is situated at the corner of St. Anthony and St. Dominick avenues. There are two entrances to the cemetery — one on Bayou road, the other on Canal street. His lot is very much nearer the Canal-street entrance than it is the Bayou-road entrance. [40] Entering the cemetery from Canal street, the route to his lot was down St. John’s avenue one block to St. Anthony’s avenue, and up St. Anthony’s avenue the depth of a block, some twenty-five or thirty feet, to St. Dominick’s avenue. Now, the obstructions complained of by the plaintiff are being erected on St. Anthony’s avenue, between St. John’s and St. Dominick’s. If allowed to be completed, they will stop up the way to his lot by St. Anthony’s avenue, and force him to go down one side of another block and up on the other, thus more than doubling the distance which he now has to make. It is evident to our minds that the avenues in the cemetery were, when the plan thereof was made and the plaintiff’s lot was purchased, dedicated to the use of those who purchased lots therein, and that no obstructions can be put upon them which would render that use either impossible or imperfect. If the owners of the cemetery can block up one avenue, they can block up another, and so on from avenue to avenue until all the tombs therein will be inaccessible. The rights of the owners of lots purchased when the right of way existed can not be thus destroyed. It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, that the injunction herein issued be reinstated and made perpetual, and that the defendants pay the costs in both courts. Wyly, J. I dissent, and will file my reasons hereafter.