48 La. Ann. 1217 | La. | 1896
Lead Opinion
The opinion of the court was delivered by
The plaintiffs, the son of the late Dr. Ohoppin and the widow and children of the late Arthur Ohoppin, sue to enjoin the
Our attention is directed in the briefs for the defendant to the objection to ali the testimony offered by plaintiff to show the statements and acts of Maximillian A. Dauphin, importing the obligation on his part that the tomb should be the permanent sepulchre for the remains of the Choppins. The argument of the counsel for the defendant is, that the plaintiffs, asserting an easement or servitude on the tomb or a title to it, can produce no parol proof to support their pretensions. While the petition claims an easement or servitude on the tomb, we must consider all the allegations on which plaintiffs rely. The substantial issue tendered by the petition is that Mrs. Dauphin, by words and conduct, held outto plaintiffs that the remains of their dead should rest forever in this tomb, on the faith of which
We do not appreciate there is any material contention as to the facts. The friendship between Dr. Ohoppin and Dr. Dauphin; the mode of manifesting that friendship chosen by him, of an imposing tomb and his inscription upon it of the names of his friend and óf the deceased members of his family, with that of Dr. Dauphin; the fact that he caused the remains of the deceased, Dr. Ohoppin having died about three years before the tomb was built, the others years before; the avowal of Dr. Dauphin to plaintiff that the tomb was to be devoted to the uses prompted by his affection for the family, and the reliance upon his assurances evinced by the consent of plaintiffs io the transfer of the remains, and that Mr. Dauphin caused their names to be placed with his own on the tomb, are, we think, placed beyond controversy by the record. There is left the legal question so elaborately argued.
We appreciate that servitudes exist only for the benefit of immovable property, or the profit and advantage of the living. Civil Code, Arts. 709, 753, et seq. We do not perceive any basis to sustain any right of plaintiffs in the nature of a servitude of burial in this tomb. We recognize, too, that the title to immovable property in Louisiana must conform to ownership, and its modifications prescribed by the Code, Arts. 490, 492, 533, 636, et seq.; State vs. McDonogh, 8 An. 351; Succession of McCann, 48 An. 145. The title to burial ground admits of none of the modifications established for the advantage of estates or the uses of individuals. The title to this tomb is in the legatees of Dr. Dauphin, as it was in him in his life. McEnery vs. Pargoud, 10 An. 497; Burke vs. Wall, 29 An. 46. The plaintiffs assert'no title to the property. They demand only the injunction to. restrain the removal of the remains. While we recognize the title of the legatee of Dr. Dauphin, the inquiry is whether, consistently with that title, the plaintiffs by the acts of Dr. Dauphin are not entitled to prevent the removal, the subject of discussion.
It is claimed plaintiffs had no right to enjoin. The letter from Dr. Dauphin’s legatee, that caused the injunction, announced her purpose to sell the tomb, offering it first to plaintiffs. The letter implied the exclusive power of the legatee over the tomb, and to sell involved, as the plaintiffs understood and appreciated, the removal of
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.
Rehearing
On Application for Rehearing.
The original opinion in this case maintained that cemetery lots did not part with the character of immovable property, because devoted to burial purposes. Under our law whatever its uses, land is immovable. The Oode completely effaces the distinction of “ things holy, sacred and religious.” Civil Code, 452, 456; McEnery vs. Pargoud, 10 An. 497; Burke vs. Wall, 29 An. 46. The opinion, therefore, necessarily recognizes the title of Mrs. Dauphin, the legatee of her husband, to the lots bought by him and left at his death to her.
The opinion affirmed, of course, there could be no servitude, usufruct or other modification of ownership of burial lots. There is no servitude, in the legal sense, established on property for the interment of the dead, and the usufructs of the Oode are for the profit and advantage of the living. There was also the recognition in the opinion of the prohibition in the Oode enforced in our jurisprudence of every species of tenure of property except ownership
The court, then, in this case is dealing with lots, title to which is in the defendant with no form of subdivision of ownership vested in plaintiff, or in any, save the defendant. Consistently with her title and the'absolute exclusion by the law of all tenures of property, except those recognized by the Code, the inquiry presented itself how could this court sustain that right the plaintiffs assert to these lots? In what part of the Code is that to find a place? If admitted to the extent asserted, must it not be deemed simply and only of our creation? It is the claim of plaintiffs that Dr. Dauphin, under whose will his widow, the defendant, inherits these lots, by words, letters and conduct quite as expressive as language promised that the tomb he erected on the property should be the final resting place for the remains of his friend, Dr. Choppin, and the remains of the deceased members of the family, as well as for the remains of other members of the connection .when their turn came to die. This right asserted at present and for the-future, is to subsist alongside of the title the Code recognizes to the property. If admitted, the right is purely of judicial creation. The asserted right carries the use of ownership applied to burial lots, but is entirely foreign to our system.
We were therefore thus confronted in our consideration of this case, with the legal title to this property in the defendant, and another species of interest or form of title, claimed to have been brought into existence by the declarations and conduct of Dr. Dauphin in his lifetime, but not within the recognition of the Code. We reached and adhere to the conclusion that.the right, at least to the extent asserted, could not be allowed.
But we found there was a basis consistent with our law on which the plaintiff was entitled to part of the relief sought. In the lifetime of Dr. Dauphin the remains of Dr. Choppin and of the deceased members of the family had been placed in the tomb under the promise on Dr. Dauphin’s part they should remain there. In our view, wholly irrespective of any issue of title, neither Dauphin in life or his legatee after his death could recall that promise and require the removal of remains deposited on the faith of this pledge of final sepulture. The petition attributed to defendant the design of re
It is therefore ordered, adjudged and decreed that our former judgment in this case be set aside and annulled, and it is now ordered, adjudged and decreed that the judgment of the lower court, in so far as it enjoins and prohibits the removal from the tomb of the remains of Dr. Ohoppin, Mrs. Eliza Ohoppin, Arthur V. Ohoppin and Amedee Ohoppin, now in the tomb, be affirmed and the injunction decreed to be perpetuated, to that extent: it is further ordered and adjudged that in all other respects the judgment of the lower court be and is hereby avoided, annulled and reversed, and that appellees pay costs of appeal; those of the lower court to be borne by the appellants.