203 P. 359 | Mont. | 1921
delivered the opinion of the court.
This action was instituted by the plaintiff in the district court of Lewis and Clark county, to condemn certain described real estate for use as a public cemetery. Issue being joined, the cause was regularly heard, and the court adjudged the right of condemnation, and appointed commissioners to appraise the property. The defendants, the Helena Cemetery Association, Henry Winter, as one of its trustees, and Henry Winter personally, have appealed.
'It appears that the plaintiff is incorporated under Chapter 18 of the Session Laws of 1905 (secs. 4237 to 4270, inclusive, of the Revised Codes, 1907), and Acts amendatory thereof, for the purpose of procuring, holding and disposing of land to be used exclusively as a public cemetery. The defendant company was incorporated for profit in 1890, under Chapter 25, Laws of the Fifth Division of the Compiled Statutes of Montana of 1887 (secs. 446-495, inclusive), for a term of twenty years, and engaged in operating a cemetery upon the property in question. On the 4th of August, 1910, the corporate life of the defendant Helena Cemetery Association expired by operation of law, and has never been extended. The defendants other than the Helena Cemetery Association were directors of the corporation at the time of the expiration of its corporate life, or were subsequently elected as directors, or were the holders of all of the outstanding capital stock of the Helena Cemetery Association.' The affairs of the defendant corpora
The only question involved, and that which is determinative
The general incorporation laws under which the defendant association was organized authorizes the formation of corporations for the purpose of carrying on general business enterprises named, cemeteries not being included therein. However, the matter of the incorporation of the defendant corporation becomes unimportant, since it is alleged and admitted that its corporate life expired by operation of law, and has never been renewed nor extended; and it appears that certain of the defendants have assumed to exercise ownership, conduct its business and affairs, and act as its officers or trustees.
Both before and since the cessation of the defendant association’s corporate existence, its business and property used in connection therewith must be considered wholly private in nature, so that the land sought to be condemned is private property. As such it may be taken by eminent domain. (See. 7333, Rev. Codes.)
The law under which the plaintiff corporation was organized has been amended in certain particulars by Chapter 128, Laws of 1909, Chapter 99, Laws of 1911, and Chapter 65, Laws of 1919. By it cemetery associations are specially provided for, and given perpetual existence. They are eleemosynary institutions, authorized by the law to function without
But it is argued by defendants’ counsel that the lands sought
These eases are all clearly distinguishable, and the application thereof to the case before us might be considered meritorious were the property of the defendants owned and used by a public corporation such as the plaintiff; but they are without force as applied to the defendant’s property, which, save as to the burial lots already sold, is private property, and may be used for any purpose. There is nothing whatsoever to prevent the defendants from using the property in question (unsold lots) for agriculture, pasture, town lots or any other purpose they
The rule applicable does not prevent the taking by the state or a public corporation, of property owned by an individual or private corporation used for the same public purpose. (Lewis on Eminent Domain, 3d ed., sec. 440; 20 C. J. 600.)
The judgment is affirmed.
Affirmed.