66 Vt. 495 | Vt. | 1894
This is a bill to have the town enjoined ■from laying out into lots, and disposing o‘f the same, or from
Considerable of it could be used for that purpose if the prayer of the orators’ bill should be granted. What is found, by the master, in regard to the consultations between the town authorities, renders it apparent that the purchase was made at that time to anticipate the use of the land occupied by the orators’ dwelling houses, for such purpose. It is not found that the use of the addition adjoining the house lots of the orators for burial purposes, if the burials were properly made, would create a nuisance to the dwelling houses of the orators, but it is found that such use would materially diminish the value of them. The orators rely upon R. L. 32x0, as prohibiting the town from burying
“This chapter shall not authorize the acquiring oí land for the purpose of the enlargement or establishment of a burial ground so as to bring the same within twelve rods of a dwelling house, and no remains shall be buried in such burial grounds so enlarged or established, within twenty rods of a dwelling house.”
It is apparent that this relates to the enlarged or newly established part of such burial grounds. The defendants contend that this provision relates only to such dwelling houses as are in existence at the time of the enlargement, or establishment. No legislation existed on this subject prior to 1858. Then provision was made for the enlargement or establishment of burial grounds by towns, by purchase or condemnation. No damages were assessed except for the lands appropriated. There was a provision that such enlargement or establishment should not be made “so as to bring the same nearer than twenty rods to any dwelling house.” Act No. 4, 1858. Then Act No. 25, 1860, as incorporated into section 14, chap. 18, Gen. St., provided such enlargement or establishment might be brought nearer than twenty rods to such dwelling houses, as the owners should give their consent therefor in writing. It also allowed enlargement on those sides of existing burial grounds where the twenty rod limit would not be infringed. This was followed by Act No. 40,1865, providing that the inhibited twenty rod limit should apply only to dwelling houses existing on adjoining lands “ at the time of the enlargement or establishment.”
This act purports to give or limit the construction to be placed upon the provisions contained in the General Stat
Whether this section, under this history of the changes of the statute, should be construed, as claimed by the orators, as prohibiting the burial of any remains in the newly enlarged or newly established part of any burial grounds within twenty rods of any dwelling house, although erected after such enlargement;' or, as claimed by the defendants, is applicable only to dwelling houses m existence at the time of the enlargement, is not very material to be determined in this case. In equity, the intention and spirit of the requirement is to be regarded more than the strict letter of the law. It is a police regulation passed to secure the health of the public and of individuals. Disease germs are propagated and distributed so insidiously and beyond common observation, both through the air and percolating water, that it is next to impossible to trace them and determine by ordinary methods whether a public or private nuisance is created by the burial of the remains of a deceased person within given limits to a dwelling house.
To prevent the communication of disease from such source the legislature thought it wise to prescribe a limit within which such grounds should not be brought to a dwelling house,- and within which no remains should be buried. When the town authorities, at the time of acquiring the land to make this needed enlargement, acting solely for the public, knew that the land occupied by the orators’ dwelling houses would very soon be needed for such purposes, had laid out a street to make it available for that purpose, and
Decree affirmed and cause remanded.