King v. Elrod

Mr. Justice Burnett delivered the opinion of the Court. The bill in this cause was filed asking a mandatory injunction, the removal of a lock across a roadway leading to a cemetery and for damages double the amount suffered by the complainants. The gravamen of the bill is that the defendants, appellees here, had desecrated and destroyed an ancient family cemetery in which distant relatives of the complainants had been buried. A, demurrer setting forth numerous grounds was filed in due season and after argument the demurrer in all particulars was sustained and the bill dismissed. A motion for rehearing was filed which after being overruled the case was appealed to this Court and is now before us for determination. The bill being demurred to we take the factual situation averred in the bill as true. It is alleged that — 381 — this cemetery was set aside as a private cemetery prior to the Civil War and first known as the “Ferguson Cemetery”; that later one Lige Flenniken purchased the land and thereafter many Flenniken heirs were buried in this graveyard and it then became known as the “Flenniken Cemetery”. In 1944 the defendants, appellees here, purchased a farm in Knox County on which this cemetery was situated, it being on the south side of what was then the Tennessee Eiver, now Fort Loudon Lake and situated on a knoll overlooking this lake. In 1862 ancestors of one of the complainants were buried in this cemetery and some time about the Civil War an ancestor of the complainant King was buried in this cemetery. From that time on up until 1922 various people were interred in this plot of ground. The plot of ground upon which this cemetery is situated is approximately 150' feet by 200 feet in dimensions. The bill alleges “that to carry out this scheme the defendants proceeded to landscape said knoll and surrounding grounds with the aid of dynamite, a bulldozer and other equipment, blasted a number of large and beautiful trees out of the graveyard and proceeded to level off the terrain with the bulldozer and in these operations pushed aside all of the headstones and footstones of the graves and completely obliterated the cemetery as it 'had existed for many many years. ” This averment of the bill which we take as true follows averments that the defendants, appellees here, were planning to use this knoll where this cemetery was as the location of a residence. It is further alleged in the bill that in an effort to carry out this wicked and unlawful scheme of the defendants that they “proceeded to level the graveyard off for the sole pur — 382 — pose of eradicating said cemetery and using the same for their own purposes.” It is further said: “These complainants charge that the defendants have maliciously and unlawfully trespassed upon this plot of hallowed ground located upon their farm and proceeded to wipe its identity from the face of the earth.” After these averments the plaintiffs aver that what the •defendants, appellees here, have done is a “distinct violation of the penal code of Tennessee, particularly Code, Section 10886 which section, in addition to the penalty imposed, provides that the parties so injured are entitled to recover damages in double the amount of the injuries sustained ,and they would show the court that these complainants on behalf of themselves and all other persons interested in said cemetery, are entitled to a judgment for said damages.” Allegations are also contained in the bill that the defendants have obstructed the right-of-way of the complainants and others to the graveyard by stretching a large log chain across the entrance and placing a padlock thereon and marking this “no trespassing” and that these activities of the defendants have prohibited complainants and others from visiting the graveyard, all of which it is said is a part of the defendants, appellees here, scheme to obliterate and forever destroy the graveyard. The complainants then pray for a mandatory injunction requiring that the defendants remove the padlock and restore the graveyard to its former condition by replanting trees and replacing headstones and foot-stones, etc., then there is a prayer that the injunction be made permanent and that the complainants be awarded damages in double the amount of the injuries sustained by them. — 383 — It is not necessary for ns in disposing of the matter, in onr view of the matter, to take np each of the grounds of the demurrer as interposed in this case. There are only two assignments of error, the first of which considers really all of the grounds of demurrer as a whole and the second is to the overruling of the petition to rehear. Ordinarily equity will enjoin .an unauthorized encroachment upon, or use of, lands dedicated to public burial purposes. It is universally recognized that the sentiment of mankind, the right to decent burial is well guarded by the law, and relatives of a deceased are entitled to insist upon legal protection for ,any disturbance or violation of this right. 10 Am. Jur., 503. At common law the disturbance of a grave is an indictable offense as highly indecent and contrary to good morals. In this State it is made a misdemeanor by Statute, Code, Section 10886. As a matter of academic interest the question of suits of various types for a desecration and violation of the rights of those having dead relatives buried in a graveyard, is very interestingly discussed in an annotation in 172 A. L. R. 568. In the accumulative supplement to Am. Jur., under Cemeteries, Sec. 39, will be found quite an extensive statement and annotation on this subject at page 33 of the supplement. As we view this case it largely comes down to the question of what is the obligation and necessity of a Chancery Court under the admitted facts. The usual office of an injunction is to restrain actual or threatened acts which are injurious to one’s rights and not to compel the undoing of the wrong. But of course there are mandatory injunctions wherein one is compelled to undo the wrong that has been done by him, but “the rule is that a mandatory injunction such as asked for in this case — 384 — will not be granted except in extreme cases, and when courts of law are unable to afford adequate redress, or when the injury complained of cannot be compensated in damages.” Post v. Southern Railroad Co., 103 Tenn. 184, 216, 52 S. W. 301, 309, 55 L. R. A. 481, citing Gibson’s Suits in Chancery, pages 784, 806; 1 High on Injunctions, page 3, 3 Pomeroy’s Equity Jurisprudence, page 1359; Hall v. Railroad, 12 A. M. and Eng. R. R., cases 41. This statement, last quoted, is expressly approved by this Court speaking through the late Chief Justice Grafton Green in Union Planters’ Bank & Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 658, 139 S. W. 715, 39 L. R. A., N. S., 580. And it is a universally well recognized rule today. As is said “such an injunction is a rather harsh remedial process and is not favored by the courts.” 28 Am. Jur. Sec. 17, page 210. In granting any injunction whether prohibitory or mandatory it is “in the exercise of a sound judicial discretion”, 28 Am. Jur., Sec. 20, page 213. “And in conformity with the settled equitable principles and considerations.” It is also to be noted that when a court is asked to interpose a mandatory writ it is very reluctant to do so for obvious reasons. “When the court is thus asked to undo something that has been done, it must, for obvious reasons, act in a careful and conservative manner and grant the relief only in situations which so clearly call for it as it may inflict on the defendant the very irreparable injury which it is al-ledged he has done or is about to do against the plaintiff” Am. Jur., supra. The case in which a mandatory injunction is granted by the Chancellor should be a clear one and show that the only real remedy that the party asking the mandatory injunction has is the injunction. See Union Planters’ Bank & Trust Co. v. Memphis Hotel Co., — 385 — supra, 124 Tenn. 649, 139 S. W. 715, 139 L. R. A., N. S., 580. Whether or not such, injunction should be granted is a question that the court must use its judgment on with, reference to the special circumstances of each case, and the court’s action thereunder will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of such discretion. We have very painstakingly and carefully read and reread this bill and the briefs of both parties. It seems to us, after so doing, that the Chancellor did not abuse his discretion and was clearly right in refusing the injunction in this case. The reason that we say this is that it appears from the facts averred in the bill that the cemetery had been completely obliterated, the gravestones graded off, etc., to such an extent where the only obvious inference is that there was no longer a graveyard there. Under such a state of facts it would certainly not foist good will to require the parties to reinstate or rebuild the old graveyard on the spot where it had been before. There are many obvious reasons of why in the first place this would be entirely impractical and in the second place there would always be the ill will of those visiting the graveyard and those living around, one toward another to such an extent that under our American system there would be constant litigation, bickering and quarreling between the parties. Under such circumstances it seems to us that the Chancellor was eminently correct in denying the injunction. This being true of course then there was no ground for equity to take jurisdiction. When equity had no jurisdiction the court of Chancery had no right to award un-liquidated damages under the rights of the parties as alleged herein. See Union Planters’ Bank & Trust Co. v. — 386 — Memphis Hotel co., supra. This being true a statement from Gibson’s Suits in Chancery, 4th Edition, pages 257, 258, Sec. 289, is particularly applicable because now the parties are left to their right in a suit for damages. Judge Gibson said: “There are cases where pecuniary compensation by way of damages is manifestly the appropriate remedy, and .a specific performance impracticable, if not impossible. ' There are matters which estop a complainant from setting up what would otherwise have been legal or equitable rights, and thereby defeat his suit. “In all such cases, and, also in all criminal cases, and cases of a criminal nature, a Court of Equity refuses to take jurisdiction, because there is in them a manifest want of Equity; and bills in such cases may either be dismissed on motion for want of Equity, or special demurrer will lie to the bill. ’ ’ As above said parties who desecrate a graveyard as alleged in this bill are subject to indictment at common law and likewise under our Code, Sec. 10886. Courts of Equity universally do not render their aid to enforce a penalty or a forfeiture but leave the party to his legal remedy. Gibson’s Suits in Chancery, page 262, Sec. 296. For this reason it seems to us that the Chancellor was correct and we therefore must affirm his decree and dismiss the bill and leave the parties to their remedy at law and whatever prosecution seems necessary under the criminal statute.