Woodlawn Cemetery v. Inhabitants of Everett, 118 Mass. 354

Woodlawn Cemetery v. Inhabitants of Everett

118 Mass. 354 | Mass. | 1875

Gray, C. J.

By the Rev. Sts. c. 7, § 5, cl. 5, “ all tombs and rights of burial ” were exempted from taxation.

The St. of 1841, c. 114, authorizing ten or more persons to organize themselves as a corporation for the purpose of procuring, establishing and preparing a burial place for the dead, provided in § 7 that “the real estate of such cemeteries or burial places shall be exempt from public taxes, so long as the same shall remain dedicated for the purpose of a cemetery or burial place for the dead.”

*361By § 1 of the St. of 1855, c. 237, (which was passed and took effect on April 27, 1855,) the Woodlawn Cemetery is declared to be such a corporation; and by § 4, the provision of the St. of 1841, c. 114, § 7, above quoted, “ shall apply to all the shares, property and effects of said corporation, so long as its real estate shall remain dedicated to the uses and purposes of a cemetery or burial place for the dead.”

By the St. of 1855, c. 257, (passed three days later,) § 3, “ no land" other than that now used or appropriated in any 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 town.” Section 2 contains a similar provision as to cities. And by § 10 nothing in this act shall prevent inhabitants of any town from using or erecting a tomb on their own land for the exclusive use of their own family.

These provisions are substantially reenacted in the General Statutes. By e. 11, § 5, cl. 8, “ cemeteries, tombs and rights of burial,' so long as the same shall be dedicated for the burial of the dead,” are exempted from taxation. And by c. 28, § 5, “ except in the case of the erection or use of a tomb on private land for the exclusive use of the family of the owner, no land, other than that already so used or appropriated, 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.”

No land can be deemed to be “ dedicated ” for the purposes of a cemetery or burial place for the dead, so as to be exempt from taxation, or “ used or appropriated ” for the purpose of a burial ground, so as to entitle the owner to use it for that purpose for the future without municipal permission, which has not been devoted or set apart, and some active measures taken towards preparing the ground, for a burial place. A mere dedication or appropriation on paper is not enough.

It appears by the facts agreed that at the time of the passage of the St. of 1855, c. 257, the Mount Lebanon Cemetery, which had purchased the Corbett farm, and given a mortgage back to the vendor to secure the payment of part of the purchase money, had merely voted to appropriate the same to the purposes of a emetery or burial place, and had not in fact so appropriated it, nor done any act upon the land towards such appropriation. At *362the time of the passage of the General Statutes, the vendor held the land, under a foreclosure of his mortgage for a breach of condition, unaffected by any appropriation or intention to appropriate it to the purposes of a cemetery. The Woodlawn Cemetery, the present plaintiff, acquired its title to the farm eight years after-wards. But even if the plaintiff could avail itself of the previous holding of the farm by the Mount Lebanon Cemetery, the facts show that it has never been actually used or appropriated for a burial ground, within the meaning of the statutes.

It is expressly agreed in the case stated that no part of this land has been used for burials, or divided off or laid out into lots or permanent avenues, and that no attempt has been made to sell it for purposes of burial. The use of a parcel of land for growing trees or shrubs, cutting turf, and depositing stone, wood and other materials, to be ultimately used in preparing and ornamenting a cemetery, is no dedication of such land itself for the purposes of a cemetery or burial place for the dead.

The cases cited by the learned counsel for the plaintiff are quite distinguishable from this. Those of Wesleyan Academy v. Wilbraham, 99 Mass. 599, and Massachusetts General Hospital v. Somerville, 101 Mass. 319, arose under the broader clause of the tax act, Gen. Sts. c. 11, § 5, cl. 3, which exempts all real estate occupied by charitable institutions “ for the purposes for which they were incorporated ; ” and in each case the lands held to be exempted were occupied by such an institution for the purposes specified in its charter. The extent of the decision in Balch v. County Commissioners, 103 Mass. 106, was, that it was no objection to the validity of an order of the county commissioners, under the St. of 1866, c. 112, authorizing land to be taken for the enlargement of a burial ground, that part of the land taken was to be used for a passage way from the burial ground to a public street.

The charter of the plaintiff corporation did not exempt lands, held by it for burial purposes, from the control of the Legislature in the exercise of its police power for the security of the public health and comfort. Brick Presbyterian Church v. New York, 5 Cowen, 538. Coates v. New York, 7 Cowen, 585. Sohier v. Trinity Church, 109 Mass. 1, 21. Commonwealth v. Intoxicating Liquors, 115 Mass. 153. The provisions of the St. of 1855, c. *363257, §§ 2, 3, and Gen. Sts. c. 28, § 5, are a reasonable and lawful exercise of the power of the Legislature. Although the former speaks only of lands “ used by any person or persons,” yet those words, by the Rev. Sts. c. 2, § 6, cl. 13, and the Gen. Sts. c. 3, § 7, cl. 13, may, and in this case must, extend to corporations, in order to give them reasonable effect; for at the time of their passage very few, if any, lands in this Commonwealth were held by individuals for burial purposes, other than private tombs, which are expressly excepted.

The article in the warrant under which the town meeting in 1869 was held was limited to the collection of the tax already assessed on the Corbett farm, and did not include any question of granting permission to use it for the purpose of burial. The permission, granted by the committee appointed at that meeting, to the plaintiff to use the land for that purpose, was therefore unauthorized and of no legal effect. Even a permission from the town so to use the land would not exempt it from future taxation until it had been actually dedicated to the purposes of a burial place.

The Corbett farm, not having been so dedicated, is not exempt from taxation under the statutes of the Commonwealth.

Judgment for the defendant.