251 Mass. 128 | Mass. | 1925
This is a suit in equity to restrain the defendants from using a described tract of land, situated in the town of Canton, for burial or cemetery purposes in violation of G. L. c. 114, § 34. It comes before this court on an appeal from a final decree of a judge of the Superior Court, enjoining the defendants and those claiming under them from using, maintaining or laying out the land described in the decree “for the purpose of burial or other cemetery purposes.” No question is raised as to the form of the decree.
Succinctly stated the facts material to the decision are that one Ross, in October, November and December, 1919, conveyed to the defendant Westbourne Cemetery Corporation the tract of land described in the bill of complaint. This defendant acquired the title to the land with the intent to establish a Jewish cemetery and, for profit to the corporation, to sell therein lots to Jewish societies and individuals. In furtherance of its purpose, in October and November, 1919, it sold portions of said land to the remaining defendants, and deeds therefor were duly executed. With the permit of the board of health of the town of Canton, two interments were made in November and December, 1919, by the defendants Trainor and Lemkin. An application to the board of health for approval of the location of the cemetery was
An examination of St. 1855, c. 257; Gen. Sts. c. 28, §§ 5, 11; Pub. Sts. c. 82, §§ 18, 21; R L. c. 78, § 30, St. 1908, c. 379, § 1, makes plain that the permission of the town which must be given before land can be used for a new cemetery or extension of an old one is a permission which must result from a vote of the inhabitants of the town in town meeting legally assembled. In the case at bar no statute and no vote of the town gave the selectmen any right to act in behalf of the town. Woodlawn Cemetery v. Everett, 118 Mass. 354. Bean v. Hyde Park, 143 Mass. 245.
The serious question is whether a bill in equity at the instance of the town will lie to enjoin the use of land for cemetery purposes, when permission of the town has not been obtained for such use in accordance with the provision of G. L. c. 114, § 34, or whether the sole redress is by. indictment after the offence .is complete. Attorney General v. Metropolitan Railroad, 125 Mass. 515. Kenney v. Consumers’ Gas Co. 142 Mass. 417, 420. Cambridge v. John C. Dow Co. 185 Mass. 448, 451. Thayer v. Kitchen, 200 Mass. 382, 386. O’Keefe v. Sheehan, 235 Mass. 390, 398.
See Worcester Board of Health v. Tupper, 210 Mass. 378.
Decree affirmed with costs.