New York Bay Cemetery Co. v. Buckmaster

49 N.J.L. 449 | N.J. | 1887

Lead Opinion

The Chancellor.

This suit was brought by Clara Buck-master to recover possession of certain lots in the cemetery plot of the New York Bay Cemetery Company. The conveyances from the company under which she claims title and right of possession were made to her father. While they convey the property in fee, they convey it for the uses of sepulture only, and to and for no other use whatever, and subject to the conditions and limitations and with the privileges specified in the rules and regulations which, at the date of the conveyances were made or which might thereafter be made and adopted by the managers of the cemetery, for the government of the lot-holders and visitors. It is urged by the cemetery company that the interest which was conveyed by those deeds is a mere right of burial, and that therefore the company, and not the grantee or his assigns, are entitled to possession. In this connection it is urged also that while by its charter (Pamph. L. 1850, p. 194), the company is authorized to acquire land for its purposes, and is empowered to sell or otherwise dispose of it in sublots, and to convey such sublots in fee, the charter also provides that they shall be conveyed to be occupied only as burial places for deceased human beings, with the uses and privileges of the several avenues, walks and chapels in the cemetery, subject to such regulations as at the passage of the charter had been or thereafter might be established by the association in relation thereto. Also that the charter provides that the care and management of the cemetery shall be confided to the incorporators and their successors, who shall have the exclusive superintendence thereof, with power to appoint and employ such officers and agents as they shall deem expedient, to fix their compensation, to cause the grounds, graves, walks and improvements to be kept in good order, and generally to do all other such things for the interest of the association and lot-holders as may be proper in the premises; and that it shall be the duty of the company to cause the cemetery to be enclosed, and at all times to keep the enclosure in good order and repair, and to keep and maintain the grounds in a clean and neat condition. The counsel of the company insist that these provisions are incompatible with any right of possession in the lot-holders. But the conveyances under which Miss Buckmaster claims, pass to her the fee in the property. And it is to her own use, although that use is limited. The fact that she is thus limited in the use which she is to make of the property does not deprive her of the right of possession. Neither does the fact that the company is to have the care and management and exclusive superintendence of the cemetery of which the property forms' a part. These things are not incompatible with possession by her. The case differs essentially from, those cited by the counsel of the company. In Queen v. Abney Park Cemetery Co., L. R., 8 Q. B. 515, a tax case, the conveyance released and confirmed to the grantee a plot of ground in the cemetery, to hold to the grantee and his heirs and assigns forever, but nevertheless upon trust and to the intent that he or they might erect or construct a vault or mausoleum in or upon the same, and might use the plot as and for a place of burial, and for no other purpose; and, subject to that intent, in trust for the company as part of the property of the company. It was held that the company was taxable for the property as the occupant thereof. In Queen v. St. Mary Abbot’s, 12 Ad. & El. 824, also a tax case, the company had the title for the land and sold rights of burial therein in perpetuity. It was held that it was liable to be rated as the occupier of the whole of the ground. In Buffalo City Cemetery Association v. City of Buffalo, 46 N. Y. 503, the conveyance was made under the statute which provided that the company should have the fee and the lot-owners only a license or easement for burial purposes, and the decision was put upon the ground that the company was the owner of the fee.

The judgment of the Supreme Court should be affirmed.

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Dissenting Opinion

Van Syckel, J.

(dissenting). Clara Buckmaster, the plaintiff in ejectment, derived her title from the New York Bay Cemetery Company, the defendant in ejectment. All the deeds in her chain of title contain the following habendum clause': “To have and to hold the granted premises to the said-, heirs and assigns, for the uses of sepulture only, and to and for no other uses whatever, subject, however to the conditions and limitations and with the privileges specified in the rules and regulations now made or that may hereafter be made and adopted by the managers of the said cemetery for the government of the lot-holders and visitors of the same.”

The act of incorporation of the cemetery company provides that the company shall have exclusive superintendence of the cemetery, with power to cause the graves, walks and grounds to be kept in good order by such persons as they may employ.

The charter also imposes upon the company the duty of enclosing their grounds with a substantial fence, and of keeping the fence and grounds in good condition.

There was no evidence before the trial court that the lot-owner had been refused possession of her lots, for the purpose of sepulture or for any other purpose, or that any demand was made by her upon the company for possession for any purpose, before suit brought.

The court below directed a verdict for the plaintiff. In this I think there was error. A rule which permits every lot-owner, under such circumstances, to vex the company with an ejectment suit must prove ruinous to the best interest of the company and disable it to perform those duties which are cast upon it by its charter. The lot-owner is not entitled to the exclusive possession as against the company. Her right is not inconsistent with the continued possession of the company, and until that right is denied her I cannot comprehend how she can maintain any action against the corporation, which, so far as appears, has done nothing to exclude the lot-owner from the full enjoyment of her rights.

In my opinion the judgment below should be reversed.

For affirmance — The Chancellor, Chief Justice, Derue, Reed, Scudder, Brown, Cole, McGregor, Paterson, Whitaker. 9. For reversal — Dixon, Magie, Yan Syckel, Clement. 4.