263 Mass. 30 | Mass. | 1928
It appears from the master’s report to which no exceptions were taken and whose findings of fact are accepted by the parties, that Samuel B. Duren was the owner in fee simple of a tract of thirty-five and three quarters acres of unimproved land situated in the city of Woburn about two miles from the center. It was located on an abandoned country road. It contained small ledges and rocks, and was covered largely with a growth of small trees and bushes. Duren on October 30, 1897, filed with the mayor and board of aldermen of the city a petition describing the land, and asking that a permit be granted to him, his heirs and assigns, to appropriate and use the land for the purposes of burial in accordance “with the statute made and provided.” The Pub. Sts. c. 82, § 18, then in force provided, “Except in case of the erection of a tomb on private land for the exclusive use of the family of the owner, no land shall be used for the purpose of burial unless by permission of the town or of the mayor and aldermen of the city in which the same is situated.” A license or permit was granted December 11, 1897. But Duren without taking any measures towards preparing the ground for a burial place, conveyed the fee on February 5, 1898, “together with all rights under and to the burial permit to Edward P. Johnson,” who on February 7, 1898, conveyed to the plaintiff, then Anne Block, the fee “together with all rights under and to the burial permit.” The master states that these deeds, which were recorded, formed parts of a single transaction designed by the plaintiff to enable her to use or dispose of the property “solely for burial and cemetery purposes.” The consideration consisted partly of cash, with a mortgage to Duren on the property to secure the balance. The plaintiff is “and has been the record owner
We are of opinion that the ruling was right. By §§ 2, 3 of St. 1855, c. 257, concerning burials and burial grounds, “No land other than that now used or appropriated in any city [or town] in this Commonwealth for the purpose of a burial ground shall be used by any person or persons for the burial of the dead unless permission is granted by the mayor and aldermen of such city,” or by the town. The Gen. Sts.
The plaintiff having failed to establish any right to relief, a decree is to be. entered dismissing the bill with costs.
Ordered accordingly.