Meagher v. Driscoll

| Mass. | Mar 15, 1868

Foster, J.

By the common law, “ though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains when dead and buried. The person, indeed, who has the freehold of the soil may bring an action of trespass against such as dig and disturb it; and if any one, in taking up a dead body, steals the shroud or other apparel, it will be felony, for the property thereof remains in the executor or whoever was at the charge of the funeral.” 2 Bl. Com. 429. Corven’s case, 12 Co. 105. Haynes’s case, Ib. 113. 3 Inst. 202. The King v. Lynn, 2 T. R. 733.

A dead body is not the subject of property, and after burial it becomes a part of the ground to which it has been committed, “ earth to earth, ashes to ashes, dust to dust.” The only action that can be brought for disinterring it is trespass quare clausum. But any person in the actual possession of land may maintain this action against a wrongdoer. Barnstable v. Thacher, 3 Met. 243. The title of the plaintiff was more than a burial right in soil the freehold and possession of which remained in another. The written instrument from Father Finotti, the owner of the fee, conferred a right to the exclusive occupation of a particular lot.

We cannot presume that land actually devoted to the purposes of a cemetery is not legally so used, from the absence of evidence that the burial ground had been licensed by the municipal authorities. No such defence is set up in the answer; or is ppen to a mere trespasser, who, without any legal authority, undertakes to disturb another in the use he makes of land of which he is in peaceable possession. The present action is therefore maintainable upon the count in the nature of trespass quare clausum.

The measure of damages was correctly stated. The gist of the action is the breaking and entering of the plaintiff’s close. But the circumstances which accompany and give character to a trespass may always be shown either in aggravation or mitigation. Bracegirdle v. Orford, 2 M. & S. 77. Merest v. Harvey, 5 Taunt. 442. Brewer v. Dew, 11 M. & W. 625. He who is guilty of a wilful trespass, or one characterized by gross carelessness and want of ordinary attention to the rights of another, is bound to make full compensation. Under such circumstances, the natural injury to the feelings of the plaintiff may be taken into consideration in trespasses to real estate as well as in other actions of tort. Acts of gross carelessness, as well as those of wilful mischief, often inflict a serious wound upon the feelings, when the injury done to property is comparatively trifling. iWe know of no rule of law which requires the mental suffering of the plaintiff, or the misconduct of the defendant, to be disregarded. The damages in such cases are enhanced, not because vindictive or exemplary damages are allowable, but because the actual injury is made greater by its wantonness.

Exceptions overruled.