Summary
In Arlington Cemetery Corporation v. Bindig, 212 Ga. 698 (95 S.E.2d 378), where the same cemetery property now involved was the subject of litigation, the Haslerig case was cited and approved.
Summary of this case from Arlington Cemetery Corp. v. HoffmanOpinion
19496.
ARGUED OCTOBER 9, 1956.
DECIDED NOVEMBER 14, 1956.
Injunction. Before Judge Pye. Fulton Superior Court. June 14, 1956.
Smith, Field, Doremus Ringel, R. E. Lee Field, Alex W. Smith, Jr., for plaintiff in error.
A. C. Latimer, Carter, Latimer Savell, Elliott Moore, Jr., contra.
The trial court correctly overruled the general demurrer to count 2 of the petition. The evidence demanded a finding that the tract of land involved in the controversy had been dedicated to cemetery purposes by the predecessor in title of the defendant, and that no other use had been made of the land since its dedication. The trial court therefore erred in granting an injunction against the use of the land for cemetery purposes.
ARGUED OCTOBER 9, 1956 — DECIDED NOVEMBER 14, 1956.
A. E. Bindig and others brought a petition against Arlington Cemetery Corporation, and alleged: The defendant's business is that of buying, owning, holding, and selling land for cemetery purposes. On March 3, 1956, the defendant purchased certain described land from S. T. Spruill in land lot 124 of the 17th district of Fulton County, and has been clearing and grading the land. The land borders on land on which the defendant is operating a cemetery. On information and belief the plaintiffs aver that the defendant is establishing a cemetery on the land conveyed to it by S. T. Spruill. The land of the plaintiffs borders on, or is near, the land of the defendant. The land of the plaintiffs and the southern part of the land of the defendant are located in a single R-1 zoning district, as designated by the 1955 Zoning Resolution of Fulton County (a copy of which is attached). Land zoned R-1 may be used only for single-family dwellings, parks, schools, golf courses, or farms, and for no other purpose unless a special permit is obtained in the manner set out in Article XIX of the Zoning Resolution. The plaintiffs are using their land in compliance with the zoning resolution. The defendant has no valid permit to establish a cemetery on the land bought from Spruill, and is acting illegally in violation of the zoning regulations of Fulton County and the laws of Georgia. Unless the court grants equitable relief, the plaintiffs will suffer irreparable damage and injury. The establishment of the cemetery will decrease the property value of the plaintiffs' homes and will decrease the value of the area as a residential area.
The prayers were for process; rule nisi; that the defendant be temporarily and permanently enjoined from preparing the land for cemetery uses or doing any act which would further the establishment of a cemetery on its property, in violation of the zoning resolution and the laws of Georgia.
The petition was amended by adding count 2. After adopting the allegations of count 1, it was alleged that the tract of 100 acres conveyed to the defendant by S. T. Spruill has never been lawfully dedicated to, or lawfully used for, cemetery purposes, and any permit to operate a cemetery on this tract has been abandoned. The defendant demurred generally and specially to count 2.
The defendant filed an answer, in which it was alleged in part: On July 7, 1926, the Board of Commissioners of Roads and Revenues of Fulton County granted a permit to O. E. Etheridge Company, "their associates, successors and assigns," to establish, maintain, and operate a cemetery on lands described in a plat attached to the application for permit. A cemetery was established and burials have taken place continuously until the present time. The defendant is direct successor in title to Mrs. Charles G. Turner and Guy B. Turner, operating under the trade name of O. E. Etheridge Company. Since the permit was granted, portions of the defendant's land have been continuously used and operated as a cemetery by the Turners and their successors in title, including the defendant. Since acquiring the property the defendant has spent substantial money in improving the cemetery, and has recently commenced clearing additional land with a view to creating additional burial lots. The defendant is making lawful use of its land, and the plaintiffs have no legal basis for injunctive relief.
Under the agreed stipulation attached to the record it appears: The property of the plaintiffs adjoins or is near the property of the defendant, and they are using their property pursuant to the zoning regulations of Fulton County. The property of the defendant was zoned for single-family dwellings under resolutions of 1946 and 1955. The property of the defendant is a single, continuous tract. On July 7, 1926, the Fulton County Board of Commissioners granted a permit to O. E. Etheridge Company, its successors and assigns, to establish a cemetery. The permit covered all the lands of the defendant. At the time the permit was granted, three tracts were owned or controlled by O. E. Etheridge Company. Two of the tracts, of 7.5 acres and 14.3 acres, were conveyed by the executrix of Guy B. Turner to S. P. Cronheim on January 14, 1949, and by Cronheim to the defendant on September 19, 1952. The tracts of 100 acres and 14.3 acres were a part of a larger tract on which S. T. Spruill gave a bond for title to O. E. Etheridge Company on November 1, 1923. On or about May 28, 1928, the bond for title was satisfied; S. T. Spruill gave a warranty deed to Mrs. Charles Turner and Guy B. Turner, receiving a warranty deed to secure debt for the property covered by the bond for title; and S. T. Spruill conveyed to the Turners the tract of 14.3 acres. This tract remained in the Turners until January 14, 1949, when it was conveyed "by an intermediate conveyance" and later conveyed to the defendant on September 19, 1952. On December 7, 1952, S. T. Spruill having reconveyed for the purpose of levy, sold the property subject to the warranty deed to secure debt, including the tract of 100 acres, at a sheriff's sale, and bought it in. On March 6, 1956, Spruill conveyed the tract of 100 acres to the defendant. In March, 1940, Spruill had conveyed the 100 acres to Southern Memorial Shrines, which later reconveyed to Spruill by quitclaim deed.
S. T. Spruill testified by affidavit for the defendant in substance: He had sold the land on March 3, 1956, to the defendant, with the intent of both parties that it was to be used for the extension of the adjoining property of the defendant operated as a cemetery. The original permit to operate a cemetery was granted as to all of land lot 124 and a portion of land lot 89 in the 17th District, and included the 100 acres, as well as other land now owned by the defendant. After the Turners procured the permit, they commenced to use and operate land in lot 124 and the land adjoining it in lot 89 as a cemetery. The bond for title which they held was satisfied, and the affiant gave them a warranty deed to the land in lot 124, with a security deed to him on the tract of 100 acres to secure the unpaid balance. The affiant made no use of the tract of 100 acres, which he considered to be set aside for cemetery use. In 1940, the affiant sold it to Southern Memorial Shrines for cemetery purposes, and it was later conveyed back by quitclaim deed. The affiant represented to the defendant that a proper permit to operate the land as a cemetery existed, and that he never intended to abandon or waive the permit except as to the northwest corner, which had been used for other purposes. The northwest corner has never been owned by the defendant.
A copy of a sales agreement between S. T. Spruill and National Cemetery Parks, Inc., made in 1940, and a copy of an agreement between Guy B. Turner and National Cemetery Parks, Inc., made in 1940, were introduced in evidence; also copies of certain plats and the 1955 Zoning Regulations of Fulton County.
The trial court overruled the general demurrer of the defendant to count 2 of the petition. The court held that the evidence did not demand a finding that the holders of the license to establish a cemetery had committed the land in controversy to cemetery purposes, and an interlocutory injunction was granted to restrain the defendant from using the land for cemetery purposes.
The defendant excepted to the order overruling its general demurrer to count 2 of the petition, to the granting of the interlocutory injunction, and to certain rulings in regard to the admission and exclusion of evidence.
1. Count 2 alleges that the tract of 100 acres conveyed to the defendant has never been dedicated or used for cemetery purposes since the license was issued to the defendant's predecessors in title in July, 1926, and that the license to operate a cemetery, as to the 100 acres, has been abandoned. An easement or right may be lost by nonuser if it shall continue for a time sufficient to raise a presumption of abandonment. Code § 85-1403. It was not error to overrule the general demurrer to count 2.
2. In the exercise of the police power of the State, and in order to promote the public health and well-being, the legislature may pass reasonable regulations as to the establishment and operation of cemeteries. Hallman v. Atlanta Child's Home, 161 Ga. 247, 253 ( 130 S.E. 814); Lawton v. Steele, 152 U.S. 133, 136 ( 14 Sup. Ct. 499, 38 L. ed. 385); 10 Am. Jur. 500, § 19; 14 C.J.S. 63, § 2.
On August 9, 1910, an act of the General Assembly was approved, providing that in counties having a population of 125,000 or more the board of county commissioners, or the ordinary in the event there be no such board, should have power to grant or refuse "permission to establish . . . cemeteries." Ga. L. 1910. pp. 130, 131. This court in several cases has referred to the permission to be granted by the board as a "permit." Hallman v. Atlanta Child's Home, supra; DeFoor v. Donaldson, 163 Ga. 36 ( 135 S.E. 405); South View Cemetery Assn. v. Hailey, 199 Ga. 478 ( 34 S.E.2d 863). Action by the board granting permission to establish a cemetery (within the powers conferred by the act) would, in legal effect, amount to a license. "A license is a right granted by some competent authority to do an act which, without such authority, would be illegal." Home Ins. Co. of New York v. City Council of Augusta, 50 Ga. 530 (1); Inter-City Coach Lines v. Harrison, 172 Ga. 390, 395 ( 157 S.E. 673); Webster's International Dictionary (2d ed.), p. 1425; 33 Am. Jur. 325, § 2; 53 C. J. S. 445, § 1; Bouvier's Law Dictionary, vol. 2, p. 1974; Black's Law Dictionary (3d ed.), p. 1110. The words "license" and "permit" are often used synonymously. Mayor c. of Savannah v. Cooper, 131 Ga. 670, 674 ( 63 S.E. 138); 53 C. J. S. 445, § 1.
Where, pursuant to the police power, a license is granted, it is not a contract and it may be abrogated. Code § 20-117. A license or permit to establish a cemetery on described lands is a personal privilege and is not assignable. Though it be considered as a grant running with the land, the license or permit does not attach if the land is not dedicated to public use for burial purposes. 14 C. J. S. 77, § 17; Weiss v. Mayor c. of Woburn, 263 Mass. 30 ( 160 N.E. 444). The defendant can not establish a new cemetery under a license granted to its predecessor in title. The right to use its land included in the license granted its predecessor in title for cemetery purposes is contingent upon a valid dedication to cemetery purposes having been duly made by its predecessor in title, pursuant to the license.
"There is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use." Mayor c. of Macon v. Franklin, 12 Ga. 239, 244. There can be no dedication of property to public use without an intention on the part of the owner to dedicate, and before dedication can become complete, there must be an acceptance by the public. Penick v. County of Morgan, 131 Ga. 385, 390 ( 62 S.E. 300); East Atlanta Land Co. v. Mower, 138 Ga. 380, 388 ( 75 S.E. 418). "When the dedication is beneficial, greatly convenient, or necessary to the public, an acceptance will be implied from slight circumstances." 10 Am. Jur. 489, 490, § 6. That cemeteries are a necessity has long been established. "Cemeteries are a necessity. A place where the dead may be given decent Christian burial must be established, and the location of such must necessarily be upon some tract of land more or less suitable and commodious; and it is impossible to find a tract of land that is not contiguous to the lands of some one else." Harper v. City of Nashville, 136 Ga. 141, 142 ( 70 S.E. 1102).
The uncontradicted evidence shows that the predecessor in title of the defendant, in the application to establish a cemetery, filed a plat of the lands which were to be used for cemetery purposes and were to be included in the license. The plat included the land here involved and other land. After the license was granted, lots were sold and burials made on a substantial part of the land (approximately 21 acres, other than the 100 acres here involved). These facts demand a finding that the holders of the license intended to commit the lands covered by the license to cemetery uses, and that the dedication had been accepted by the public through the purchase of lots and by burials.
The general rule is that, when land has been dedicated for cemetery uses, it may not thereafter be appropriated to other purposes, and this rule has been applied and followed by this court. "When a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose." Haslerig v. Watson, 205 Ga. 668, 683 ( 54 S.E.2d 413); 10 Am. Jur. 491, § 8.
The fact that a deed to secure debt was foreclosed and the lands bought at the foreclosure sale by the creditor, and that he held it for a number of years (during which time it was not used for any purpose) prior to the sale to the present cemetery corporation, would not, alone, be sufficient to show an intent to abandon the property for cemetery purposes. If, subsequently to the foreclosure, the purchaser had used the lands for other purposes inconsistent with its use for cemetery purposes, such use, by its character and duration, might constitute conclusive evidence of intent to abandon for cemetery uses. Lot owners, however, have an interest in the preservation of the cemetery in its entirety, and it is not necessary that all of the lands of a cemetery corporation be laid out in lots for lot owners to have an interest in the preservation of the entire lands for cemetery purposes. Close v. Glenwood Cemetery, 107 U.S. 466, 477 ( 2 Sup. Ct. 267, 27 L. ed. 408).
"Abandonment is largely a question of intent. Holmes v. Jones, 80 Ga. 659 [7 S.E. 168]. This intent is inferable from the acts of the parties, interpreted in the light of all the surroundings. . . Abandonment is a mixed question of law and fact." Gaston v. Gainesville c. Ry. Co., 120 Ga. 516, 519 ( 48 S.E. 188); Tietjen v. Meldrim, 172 Ga. 814, 815 ( 159 S.E. 231).
No act or intent to abandon the tract of 100 acres for cemetery purposes is shown by the evidence in this case.
3. The fact that Guy B. Turner or S. T. Spruill (predecessors in title of the defendant) may have believed that a cemetery corporation purchasing the property for cemetery purposes subsequently to dedication for such use, would be required to procure a license from the county board of commissioners, would not be germane to the issue as to whether or not a valid dedication of the property to cemetery uses had been made. The sales agreements, which were not consummated, were not admissible on the issue of dedication or as an admission against interest by a predecessor in title.
4. The plaintiffs' allegations that the lands had not been dedicated, and that rights under the license had been abandoned, were not supported by any competent evidence. The zoning ordinance approved by the Fulton County Board of Commissioners on March 11, 1955, does not purport to, and could not, invalidate the license previously granted, and the dedication for cemetery purposes.
Judgment affirmed in part and reversed in part. All the Justices concur, except Wyatt, P. J., not participating.