Town of Cheektowaga v. Peter
123 Misc. 458
N.Y. Sup. Ct.
1924
Check Treatment
Brown, J.

In Aрril, 1921, the defendant acquired title to about seven acres of land about two miles east of the city of Buffalo in the town of Cheektowaga, at the junction of Union road and Buffalo and Lancaster boulevard, having a frontage on the east side of Union road of five hundred and nine feet and a frontage on the north side of the boulevard of six hundred аnd thirty feet. The adjoining lands on the north, east, south and west of this parcel have been subdivided ‍‌​​​​‌​​‌​​‌​​​​​‌​‌‌​​​‌‌​​​​​‌​‌‌‌​‌​‌​​​‌​​‌​‍into building lots for residential purposes. Three dwelling houses are located on the west side of Union road and three оn the south side of the boulevard, each about one hundred feet from the defendant’s lands. One dwelling house on the east stands eight feet east from such lands. The title to said lands was acquired by the defendant for the рurpose of establishing a cemetery therein and using such lands for the burial of the dead. In September, 1921, *459the defendant attempted to carry such purpose into execution, caused a grave to be dug and was about to inter a human body therein when this action was commenced to restrain the use of such lands for such purpose, upon the ground that it was the creation of a public nuisance. The proofs еstablish that there are upwards of thirty drinking water wells near to and in quite close proximity to defendant’s lands, one- within seventy feet, several within onе hundred feet, and the remaining at somewhat greater distance therеfrom; that all of such wells were dug in the ground, finding water in abundance at the depth of twelve feet; that twelve feet below the surface of the ground, for a very large area, limestone rock is encountered, upon the upper surface of which all water seeping through thе soil is held impounded, and into this impounded body of water the dug wells reaсh, thus furnishing the sole drinking water supply for a very large area, 100 acres or more. This soil is loose, open, porous, stony, sand and loam, no water collects on the surface to any appreciable amount, all soaking into the ground, rapidly seeping through the soil and collecting on the limestone rock barely twelve feet from the surface. The prospective grave dug by the defendant was six feet deеp. At no time for more than two years has any ‍‌​​​​‌​​‌​​‌​​​​​‌​‌‌​​​‌‌​​​​​‌​‌‌‌​‌​‌​​​‌​​‌​‍water accumulated therein, all water produced by rain, snow or running into the grave from surfaсe, has quickly soaked, settled and seeped into the porous sоil at the bottom of the grave and beyond question readily found its way through thе remaining six feet of earth to the limestone rock beneath, reaching the drinking water supply of the neighborhood. The limestone rock is simрly a great catch basin or reservoir for all water reaching it through the twelve feet of soil. The burying of human bodies at the usual depth of six fеet leaves only six feet of open, porous, stony sand and loam as a barrier of safety between the decaying, nauseating and putrid human remains and the drinking water supply of the neighborhood. To bury such bodies over the drinking water supply of the neighborhood, with only six feet of such sоil to protect such water from the contamination necessarily created in such bodies by decay and surface water seeping through them, would certainly annoy, injure or endanger the comfort, reрose, health or safety of a considerable number of persons. Such act would be a nuisance. Penal Law, § 1530. The board of health of the plaintiff were justified in adopting their resolution of August 27, 1921, declaring the proposed use of defendant’s lands for cemetery purposes to be a public nuisance.

The plaintiff is entitled to the judgment prayed for»

Judgment accordingly.