I lO 
THE MODERN CEMETERY. 
Forethought Necessary in Acquiring Land for Cemetery 
Purposes. 
A very important question is decided by the 
supreme court of Vermont in the case of Camp 
7 ’s. Town of Barre, which was a suit to enjoin 
the town authorities from laying out into lots, and 
disposing of the same, or from utilizing for burial 
purposes, that portion of the cemetery grounds in 
Barre village purchased November .5, 1885, which 
is within 20 rods of the dwelling houses of the com- 
plainants. These dwelling houses have all been 
erected since the date of the purchase. The situa- 
tion at the time of the purchase was substantially as 
follows: There was a need for the enlargement of 
the cemetery grounds, and at the time none of the 
dwelling houses in question had been erected, but 
the cellar of one had been partly completed. The 
town had laid out the street on which these dwel- 
lings were subsequently located, (presumably to ac- 
commodate such dwellings as might be erected 
thereon; no other necessity for the street being sug- 
gested). The owner of the land now occupied by 
the dwelling houses was using it for a pasture, but 
had had it plotted into building lots, and, by an 
arrangement, the cellar on one had been partially 
completed. The town authorities did not know 
that the owner had had this land plotted into build- 
ing lots, but they knew that the land would soon, 
if it were not then, be in demand for building lots. 
They did not think the digging of the cellar on one 
of the lots would prevent the use of the land pur- 
chased for burial purposes. Considerable of it 
could be used for that purpose if the injunction 
should be granted. The purchase by the town was 
apparently made at the time it was to anticipate the 
use of the land occupied by these dwelling houses 
for such purpose. It was not found on trial that 
the use of the addition adjoining the house lots of 
the complainants for burial purposes, if the burials 
were properly made, would create a nuisance to 
the dwelling houses, but it was found that such use 
would materially diminish the value of them. The 
suit was based principally upon a statutory provi- 
sion prohibiting the town from burying any deceas- 
ed person upon the purchased addition within 20 
rods of their dwelling houses. That provision fol- 
lows those sections of the Vermont statute which 
authorize towns to acquire land by purchase, or by 
condemnation under the right of eminent domain, 
for the enlargement or establishment of public bur- 
ial grounds. It reads: “This chapter shall not au- 
thorize the acquiring of land for the purpose of 
the enlargement or establishment of a burial 
ground so as to bring the same within twelve rods 
of a dwelling house, and no remains shall be buried 
in such burial grounds so enlarged or established. 
within twenty rods of a dwelling house.” It is ap- 
parent, the supreme court holds, that this relates to 
the enlarged or newly-established part of such bur- 
ial grounds. The town authorities contended that 
this provision related only to such dwelling houses 
as were in existence at the time of the enlargement 
or establishment. Whether this section of the pro- 
vision should be construed, as claimed by the com- 
plainants, as prohibiting the burial of any remains 
in the newly-enlarged or newly-established part of 
any burial grounds within 20 rods of any dwelling 
■ house, although erected after such enlargement, or, 
as claimed by the authorities, is applicable only to 
dwelling houses in existence at the time of the en- 
largement, was not considered very material to be 
determined in this case. In equity, it was said, 
the intention and spirit of the requirement is to be 
regarded more than the strict letter of the law. 
This is a police regulation passed to secure the 
health of the public and of individuals. Disease 
germs are propagated and distributed so insidiously 
and beyond common observation, both through the 
air and percolating water, that it is next to impossi- 
ble to trace them, and determine by ordinary meth- 
ods whether a public or private nuisance is created 
by the burial of the remains of a deceased person 
within given limits to a dwelling house. To prevent 
the communication of disease from such source the 
legislature thought it wise to prescribe a limit with- 
in which such grounds should not be brought to a 
dwelling house, and within which no remains should 
be buried. When the town authorities, at the time 
of acquiring the land to make this needed enlarge- 
ment, acting solely for the public, knew that the 
land occupied by these dwelling houses would very 
soon be needed for such purpose, had laid out a 
street to make it available for that purpose, and 
knew that the owner had commenced to dig the 
cellar for one such dwelling house thereon, it was 
a clear breach of the spirit of the statute for them 
to make the purchase, and for the town to lay that 
portion of the purchase out into and sell lots to per- 
sons, giving them the right to bury thereon for all 
time. It was a breach of the spirit if not the letter 
of the statute, which equity would regard and res- 
train, both in the interest of the complainants and 
the public, — to enforce the law in essence and spi- 
rit, and to protect the health of the complainants 
and the public from the insidious propagation and 
distribution of disease. It was urged that the com- 
plainants had waived their right by allowing a few 
burials to be made on the inhibited tract. It might 
be so as regards such burials. But such interments 
are quite distinguishable from laying the inhibited 
tract into lots, and selling the lots for permanent 
use by the purchaser and his family and friends and 
assigns for all time. The decree in complainants’ 
favor did not disturb them, and was affirmed on 
this appeal. 
