17672 | Ga. Ct. App. | Apr 16, 1927
Lead Opinion
This case is virtually controlled by the decision of the Supreme Court in Hallman v. Atlanta Child’s Home, 161 Ga. 247 (130 S.E. 814" court="Ga." date_filed="1925-11-13" href="https://app.midpage.ai/document/hallman-v-atlanta-childs-home-5585678?utm_source=webapp" opinion_id="5585678">130 S. E. 814). The subject-matter is the same and two of the three complainants here were among the intervening plaintiffs there. The beginning of this case followed closely upon the ending of that case, being predicated upon the same facts, with others in the meantime occurring. We make reference to the facts shown in connection with the Supreme Court’s decision without repeating them. The litigation is about the establishment of a cemetery, to be known as Lincoln Memorial Park. The permission for the establishment of the same was issued to Hallman “as trustee for a corporation in process of charter, to be known as Fairview Cemetery Company, for a permit for himself as trustee for the benefit of said corporation when chartered to establish a cemetery for burial of colored people in Fulton county, Georgia, more than four miles from the center of the city of Atlanta,” upon land described. After Fairview Cemetery Company was chartered and
In our view of the case certain assignments of err'or, contained in the petition for certiorari and insisted upon by counsel for the plaintiff in error in their brief, may be passed over without decision. A number of them appear not to have been verified by the magistrates and we doubt if this defect was cured by the agreement of counsel recited in an order of the superior court appearing in the record. At any rate, the rulings'which we think must be made on the merits will sufficiently dispose of the case.
The first question for determination is whether the permission which the county authorities granted to Hallman, as trustee, could be exercised and enjoyed by the Fairview Cemetery Com
The next question for consideration is whether the Board of Commissioners had authority to pass the order of December 2, 1925, revoking and rescinding their action of December 26, 1924, granting the permit to Hallman as trustee as above stated. The board, in granting such permission, was acting under the authority of the act of 1910 (Ga. L., 1910, 130; Park’s Code, § 1676nn-1676qq), as to which statute the Supreme Court, in the Hallman case, said, “It does not empower the commissioners to revoke the power once granted.” This, however, was merely to say that the act contained no provisions for revocation, and was not to hold that the permit once granted was irrevocable. It may be that
From what has been said above, our subsequent consideration of the case must proceed upon the theory that the original permit to establish the cemetery as granted on December 26, 1924, continued of .force, unaffected by the attempted revocation of December 2, 1925. We have seen that nothing had occurred to render the cemetery a nuisance on or prior to the last named date. The question next to be determined will depend upon whether any such occurred between that date and the filing of the application with the justices for the abatement, in the latter part of December, 1925. The mere grant of the permit to establish the cemetery would not preclude its abatement if it was so conducted as to become a nuisance in fact. The act of 1910 provides that a cemetery established without such permit shall be subject to abatement as a nuisance and that it may be abated as such also where there has been a violation of the conditions or regulations pre
° “The cemetery property where they are burying now drains on my property, all the way across it. Mrs. McDaniel’s property joins mine. It drains toward her also. I get water from that stream that runs through my property. I don’t think Mrs. McDaniel gets her water there. I get drinking water from that stream. I get water for my live stock and chickens. All the drainage runs into it. It goes right through my place. This branch runs within about 225 feet of where burials have taken place. A part of the cemetery property drains in the other direction. That stream runs all the year. It is not surface water. It comes from the spring. I have not been to the head of the spring, but from hearsay, I would say it is about a half mile from where these burials take place. The branch that runs from the spring passes within about 225 feet of the cemetery property, where the burials now take place.” Mrs. Minnie L. McDaniel testified: “I have six acres, more or less, that borders on the cemetery tract. There is a stream of water that runs through my place. It comes out from Mr. 'Wood and Mr. Baird. It comes from towards Mr. Wood and goes right on by. The cemetery property comes right up to that branch. It may be two or three hundred feet from where they are now burying, but when they come right to my-place and commence burying, it will be right in my spring where I use water. If they put them right next to the branch, it will be right on me, and I use drinking water and water for my horse and cow, and everything. I have to drink water out of that branch. My well went dry. My spring runs into the branch. . . Yes, sir, I am on the north side of the branch
Dr. W. H. Henderson testified: “I am a practicing physician, and practice in Center Hill section a good deal. I am not familiar with where the cemetery is located, but I know about where it is. I know Mrs. McDaniel.' As to what effect a cemetery bordering close on a stream within 100 or 200 feet of a stream out of which people and cattle drink, it is owing to the lay of the land. If the strata of rock or clay is dipping toward the spring, the seepage from the graves is likely to get to the spring. In this country we have a lot of. limestone and there are crevices and in the clay there are crevices, and the water naturally forms a small stream as it flows into the ground, and it is likely to carry anything that gets in to the spring into the stream. The seepage from the ground is what makes the spring. Where the graves are within 100 or 200 feet it is probable that infection will get into the water. The fact that the water runs through the ground and in that direction shows that the cleavage must be that way, and the water follows the cleavage. Naturally water in the ground seeps or circulates as blood in the veins does in the body. It possibly might affect the health of the people who use that stream. I don’t know anything about the formation and structure of the soil there.- I don’t know in what direction the strata runs. I don’t suppose anybody else does. My opinion is just a general opinion as to what might happen in a general case.”
Dr. E. L. Awtrey testified: “I am a practicing physician and occasionally get a call out here at Center Hill.” Question: “Doctor, I will ask you whether burials within one hundred or two hundred feet of a live spring or branch out of which people and cattle use water, and that this is not a surface stream, it runs all the year around, I will get you to state whether or not it is probable that infection will come from burials made that close to a vigorous running stream.” The witness proceeded: “The feeding of the spring is due to the seepage through the earth. It collects in the grass and leaves and substrata and gradually seeps into the earth, and it is a fact that we have a great deal of limestone in this section, and there might be crevices and it might
P. E. "Wood testified: “I am son of Judge Wood. I am familiar with the lay of the land where the cemetery is. You take on the north side, it is a kind of steep hill. It is on a decline. You might say the grave is 100 feet higher than the stream, and when it rains the water seeps into the ground and runs out to a wet water stream. I know there is a wet bank ten feet deep and a wet weather spring will run for two or three days, and if it comes two or three days of rain it seeps all the time. That is on the north side, and on the’south side there is a stream that joins this stream that runs on the north side and there is a living spring in 200 feet of where they buried the last body, and that runs in 400 feet from where that living stream runs into the main stream, and it collects on five acres and the water drains into this wet weather spring. In dry weather you have a live stream all the time. That' is not the spring that Mrs. McDaniel testified about. It is beyond the one she testified about. The spring is in Mr. Hood’s land, and comes down 300 feet to Mrs. McDaniel and leaves her land and goes through Mr. Allen’s land. It runs in the spring on Simpson street and joins Mr. Allen’s stream half a mile below. One third of the cemetery drains toward the spring, that comes into Mr. Allen’s place, and two thirds drain toward the south into the stream that joins Mr. Allen’s stream. The cemetery company owns this last stream. Yes, sir, I know about the underground
It will be noted that the branch in which it is claimed the water is or will be contaminated was not closer than 225 feet to the nearest grave, while the testimony of-each of the physicians was on the hypothesis that the graves were situated within 100 to 200 feet of the branch. We’think the evidence is too vague, uncertain, and conjectural to show any actual present contamination of the water, the evidence upon this question establishing nothing more than a mere possibility of such condition. In Harper v. Nashville, 136 Ga. 141 (70 S.E. 1102" court="Ga." date_filed="1911-04-12" href="https://app.midpage.ai/document/harper-v-city-of-nashville-5577780?utm_source=webapp" opinion_id="5577780">70 S. E. 1102), quoted in the Hallman case, the Supreme Court said: “Unless the soil of the land used as a cemetery and that of the contiguous owners is such as to cause a drainage which will produce a contamination of the waters, thereby putting in jeopardy the health or the lives of the owners of the contiguous lands and the health of their families, or unless the air would be contaminated, courts of equity will not interfere by the grant of injunctive relief to prevent the establishment and location of the cemetery.” There is nothing in the instant record to show that the health or lives of any of the citizens, or of their families or stock, are at the present time in danger from the cemetery in question, and the evidence as to possible seepage and drainage and as to what, in certain contingencies, may occur as a result thereof could hardly be said to show that the cemetery would probably become a nuisance in the future; but whether this is true or not, the provisions of section 5329 et seq. of the Civil Code (1910), having reference to the abatement of nuisances by freeholders in a
The only other facts shown and relied on by the complainants for the purpose of establishing the contention that the cemetery had become a nuisance were in relation to burial permits. The first three burials which occurred on December 10, 1925, were of bodies disinterred from another cemetery in Fulton county, known as Casey cemetery. Lincoln Memorial Park was, of course, situated outside the incorporated limits of any town or city because the act of 1910 has reference only to cemeteries so situated. Casey cemetery was also situated outside any incorporated town or city. Whether they were both located in the same militia district does not appear. Besides the three disinterred, seven other bodies were buried in the cemetery involved in this case prior to the commencement of the suit for abatement. According to the evidence, permits were obtained for all ten of these burials from an official referred to as “L. Thornton, local registrar,- Atlanta, Georgia.” The complainants offered evidence to show the appointment by the State Board of Health of “T. E. Lockhart, as health officer outside the city of Atlanta for all the districts of Fulton county.” It is contended by counsel for complainants that, since the cemetery was situated outside the limits of the city of Atlanta, the burial permits should have been issued by the last named health officer, and that the burial of the bodies without permits issued by him rendered the cemetery a nuisance. The vital statistics act, approved August 7, 1914 (Ga. L., 1914, p. 157, Park’s Code, §§ 1676m-1676mm) is cited in support of this contention. A careful reading of that act shows that the proper person to issue a burial permit is the registrar of the city or militia district, as the
The permit granted to establish Lincoln Memorial Park as a cemetery was upon the condition, among others, that “All burials shall be made in a sanitary manner and according to rules and regulations of the Health Department of the county of Fulton and State of Georgia.” We suppose the health regulations here referred to are those which may be promulgated under the Ellis health law (Ga. L., 1914, 124, Park’s Code, § 1669a et seq.). No evidence was introduced to show what regulations had been adopted by the Fulton county board of health, nor- therefore that any such regulations had been violated. The vital-statistics act is not a regulation by the board of health of Fulton county, even if it could be considered at all as a health measure. But see Smith v. State, 160 Ga. 857 (129 S.E. 542" court="Ga." date_filed="1925-06-22" href="https://app.midpage.ai/document/smith-v-state-5585613?utm_source=webapp" opinion_id="5585613">129 S. E. 542).
Moreover, unless an irregularity in the matter of obtaining disinterment or burial permits was a violation of one of the rules and regulations of the board of health of Fulton county, expressly subject to which the permit to establish this cemetery was granted, the failure to obtain proper permits would not, without more, render the cemetery' a nuisance, even though such failure amounted
Judgment reversed..
Concurrence Opinion
concurring specially. I concur in all that is said by my associates, except their reasoning as to the lack of all possible force and probative value of the evidence set forth and discussed in the third division of the opinion. While I agree that the evidence offered to show the existence of a present, continuing nuisance is somewhat vague and uncertain in character, I would be loath to hold that it fails, absolutely and as a matter of law, to support the finding, except for the fact that the jury had before them the record of the illegal revocation of the permit by the commissioners, which may have constituted the real basis of their finding.