193 Wis. 108 | Wis. | 1927
The proceedings herein were instituted under ch. 157 of the statutes relating to cemeteries. Sec. 157.05, so far as material to this proceeding, reads as follows :
“(1) A cemetery . . . association . . . may take and hold not exceeding eighty acres of land, to be used exclusively for burial of the dead. . . .
“(2) •••
“(3) When it is necessary to enlarge a public cemetery and adjoining lands cannot be acquired or can be 'acquired only at an exorbitant price, application may be made in writing to the county judge by twelve or more resident freeholders of the municipality in which the cemetery is located, describing the land and setting forth the facts and the price asked, whereupon the judge shall appoint three resident free*111 holders of the county, but not of such municipality, to appraise the damages of each owner, not to exceed the price asked, but, except in cities or incorporated villages, no lands shall be taken within twenty rods of a residence owned by the occupant without his written consent. The appraisers shall hear all parties upon ten days’ notice and file report in writing with the judge within ten days after determination.
The statutes authorizing the condemnation of private property for public use are to be strictly construed. Union Mfg. Co. v. Spies, 181 Wis. 497, 195 N. W. 326. However, the petition admittedly is sufficient to give the court jurisdiction, and an examination of the evidence produced before the county judge, we think, sufficiently establishes the facts alleged in the petition to justify the order. We do not deem it necessary to review the testimony.
The important legal question here involved is as to whether or not the judgment of the circuit court of 1899 is a bar to the proceedings herein. That judgment adjudged the cemetery grounds laid out, herein described as parcel No. 2, a nuisance. The then owners, Frank L. Groth and Frederick Gruhl, were perpetually enjoined from using said parcel for burial purposes or a cemetery, and from maintaining any part or parts thereof as a cemetery. The judgment did not extend to the heirs, successors, or assigns of such owners. It covered in express terms such owners and no others. It was based upon a finding of the court- that the owners had not complied with certain statutory requirements then existing. Those statutory requirements have since been materially modified by legislative act, and the present proceedings fully comply with present statutory requirements, The judgment of 1899 did not cover or extend to parcel No. 3 of the present proceedings.
It is a general rule that an injunction is only binding upon the persons or parties named in the decree. The remedy is
It is the contention of the appellant that the judgment of 1899, though running against only Groth and Gruhl, must, be obeyed by their heirs, successors, and assigns in ownership of the property therein described. There would be force in the authorities to the appellant’s contention if the judgment had run against the defendants in that proceeding and all other persons claiming under them. The judgment in such a case is sometimes held to be in rem and a burden upon the real estate, creating a limitation upon the use of such property by all subsequent owners, lessees, or occupants. The judgment against Groth and Gruhl is not so broad. It is limited strictly to the then owners, and we think it should not be held to apply in a case of this kind.
The cemetery extension, as proposed in 1899, was a nuisance only by reason of the statutory condemnation, which does not now exist. The judgment did not provide a restriction running with the land, but only enjoined the parties. While better practice would have been to have applied to the circuit court for modification of the judgment, under the facts of this case we must hold that the judgment of 1899 does not prohibit petitioners from proceeding herein in accordance with the order of the county court.
By the Court. — The order of the county court is affirmed.
