68 Pa. Super. 242 | Pa. Super. Ct. | 1917
The numerous plaintiffs in the bill are the owners of lots in the cemetery managed and controlled by the defendant. The bill was filed for the purpose of obtaining
As we understand the facts, each one of the plaintiffs was the owner of a lot in the cemetery and acquired title thereto by deed for a valuable consideration. Each deed contained the following granting clause: “have granted, assigned, bargained, sold, released and confirmed, and hereby freely and absolutely do grant, assign, bargain, sell, release and confirm unto the said-, heirs, executors or administrators, the full, free and absolute right of sepulture and the exclusive use, occupation and possession for that purpose and for all objects and purposes incident thereto into and upon a certain lot or piece of ground in said cemetery, &c.” Later on in each deed there appeared the following: “Provided always, and it is hereby expressly agreed, stipulated and understood by and between the parties to these presents that the said right of sepulture, privileges and appurtenances hereby granted, are and shall be at all times held and enjoyed under and subject to the provisions of the charter of incorporation of the Laurel Hill Cemetery Company and of the by-laws, rules and regulations of the said company as they now exist and may be hereafter enacted and created.”
The company was incorporated in 1837 and sales of lots have been continuously made from that time to the present. During all of the period from the time of the incorporation of the company down until the first of January, 1915, the grant recited was so construed, both by the cemetery company and the many lot holders, that the latter, without objection, could take charge of the adornment and beautification of their own lots and for
It is of the first importance that attention be given to the language of the grant already quoted. As will be seen, it conveyed not merely the right of sepulture, and the exclusive occupation and possession of the lot for that purpose, but such use and possession applied as well to “all objects and purposes incident thereto.” The latter then were just as much the subject of the grant as the right of sepulture itself, and for the accomplishment of those purposes and the exercise of those incidental rights or privileges the possession of the grantee was exclusive. For what objects and purposes, apart from the right of sepulture itself, could the grantee of such a lot
We concede it is well within the power of -the cemetery company, and altogether in harmony with the nature of the grant and the purposes of the proviso we have quoted, to adopt such reasonable by-laws as might regulate the exercise of. their rights by the lot holders so as to promote the general welfare of all concerned and to bring about a proper and harmonious development of the entire property for the good of all. We doubt not such regulation might reasonably embrace measures to preserve peace and good order among those working in the cemetery and to forbid entrance thereafter to any individual who refused obedience to such reasonable rule or regulation. But the power to regulate is one thing, the
We are of opinion the decree entered by. the learned court below rests on a sound foundation, save in so far as it includes what is or may be meant by the term “grading.” We can readily see that to permit each lot to be graded according to the particular notions of the owner might seriously interfere with the rights of other lot owners and retard or prevent any general plan of .development. We shall amend the decree so that it may not include the right of the lot owner to grade at will.
We are not at all persuaded the case at bar is ruled by our earlier case' of Cedar Hill Cemetery Company v. Lees, 22 Pa. Superior Ct. 405. We learn from the opinion delivered in that case the deeds made to the various lot owners conveyed to each a certain lot or lots “for the uses and purposes of a burial ground or place of sepulture for deceased human bodies, except people of color, and for no other use or purpose whatsoever, under and subject to all the rules, regulations, conditions and restrictions contained in the charter and the by-laws then or thereafter adopted.” The difference in the nature and extent of the two grants it seems to us is apparent.
Without elaborating further and examining the many authorities in other jurisdictions which clearly sustain the right of the plaintiffs' to the injunctive decree granted, we content ourselves with amending the second paragraph of the decree so that it may not be construed to mean that plaintiffs and other lot owners may grade their respective lots at their own will and pleasure, but in all other respects the said decree is here