243 
PARK AND CEMETERY 
graves, and on which there was a 
lien for the commissioner’s claim, 
which was a part of the costs in the 
suit for the purchase price of the 
property. 
In the case of Woodland Cemetery 
Company vs. Ellison, S. V. D. Stout, 
as master commissioner of the Cir- 
cuit Court, was allowed a fee for his 
services of $78, $10 of which was paid. 
The cemetery company settled with 
Ellison, but failed to pay Stout, and 
his administrator, being unable to col- 
lect his claim otherwise, filed this 
suit against the cemetery company, 
alleging that it owned three acres of 
land, with a house upon it, and on 
which there were no graves, and on 
which there was a lien for his claim, 
as it was a part of the cost in the 
suit of Ellison for the purchase money 
of the property. The Circuit Court 
ordered the land sold for the debt, 
and the cemetery company appeals. 
The Supreme Court says: “The 
rule that the chancellor will not order 
a sale of a cemetery has no applica- 
tion to the case, as it is alleged in 
the petition and not denied, that there 
are' no graves on the land ordered 
to be sold. It is true the court might, 
in its discretion, have placed the prop- 
erty in the hands of a receiver, in- 
stead of ordering a sale of it; but, 
on the showing made in the Circuit 
Court, it appeared that it was not 
practicable to make the judgment in 
this way. The court had the power 
to order a sale of the property for the 
debt, and we do not see that he 
abused a sound discretion in order- 
ing a sale. Judgment affirmed.” 
Refusing Burial to Negro Lot Holder 
Illegal. 
In a decision of the Court of Ap- 
peals of Kentucky, it was held that 
a cemetery corporation managed by 
white persons cannot prevent the 
owners of a lot from burying on it, 
though the owners are negroes, and 
though they have refused to accept 
a price offered by the -cemetery for 
the lot. Joel J. Walker, the owner 
of a lot in Richmond Cemetery, Rich- 
mond, Ky., died and bequeathed his 
lot to a former servant, who sought 
tto bury her child in the lot. The 
appellees sought to compel the ceme- 
tery to permit the burial of this child 
on the lot, and to prevent it in the 
future from interfering 'with the burial 
of the persons named in the will of 
Joel J. Walker, on this lot. The ap- 
pellant answered the petition. A de- 
murrer was filed to it and sustained. 
It refused to plead further, and the 
court granted to the appellee the re- 
lief sought. The substance of the 
answer was that the cemetery of the 
appellant was for the burial of white 
persons, and that colored persons 
were not allowed to be buried in it; 
that it had purchased acres of 
ground on the opposite side of the 
city and donated it to the colored 
people in which to bury their dead, 
and it had offered to pay, and was 
willing to pay, the devisees of Joel J. 
Walker a full price for this plot. 
“The appellant does not present a 
single legal reason why the judgment 
of the lower court should be re- 
versed,” says the court. “Its theory 
and theme is one of sentiment — that 
the peace and good order of the com- 
munity requires that the two races 
have separate burial places; that this 
is the policy of the state, as shown 
by its requiring separate coaches on 
railroads, and seperate schools for 
the white and colored people. This 
was accomplished by statutes, but the 
General Assembly has never enacted 
any statute requiring separate burial 
places for the two races, and this 
court is powerless to prevent any 
person, either white or black, from 
any legitimate and legal use of his 
property, and it has no power to force 
him to accept any price that may be 
offered for his property. For these 
reasons, the judgment is affirmed.” 
Injunction Forbids Cemetery Pollut- 
ing Ground. 
In the case of Payne vs. the town 
of Wayland, la., the trial court grant- 
ed an injunction forbidding the estab- 
lishment of a cemetery adjoining an 
old one. The plaintiffs alleged that 
the land lay in immediate proximity 
to the wells and other sources of 
domestic water supply; that south and 
southwest of the tract the streams and 
surface water draining said land, re- 
inforced a short distance by certain 
springs, combine to form a stream of 
running water during many months 
of the year; that this stream, flow- 
ing in a westerly and southerly course 
through said town and the public 
pastures adjacent thereto, is a source 
of water supply to cows pastured 
therein; and that the principal resi- 
dence district of said town lies to the 
south and southwest of said proposed 
burial ground and partly along said 
stream. It is further alleged that if 
burials of the dead are made in said 
tract of land, as proposed, it will 
pollute and poison the wells of plain- 
tiffs, and will pollute and poison the 
streams and springs below said tract 
of land; that said springs are used for 
domestic purposes and a water sup- 
ply for cows; that microbe germs and 
other sources of pollution may be car- 
ried from the dead human bodies in- 
terred therein, through the soil, to 
said wells and springs and streams; 
that thereby the health, lives,, and 
welfare of the inhabitants would be 
endangered and liable to infectious 
diseases from contaminated water, 
and real estate used for residence 
purposes would be greatly lessened 
in value — all to the irreparable in- 
jury and damage of the plaintiffs. 
The issue tendered by the answer, so 
far as it is material for present pur- 
poses, is a denial that the land is un- 
suitable for burial purposes or unsuit- 
ably located therefor, and a denial 
that burials ' therein will endanger the 
health or property of the plaintiffs. 
The answer also avers that the same 
stream which passes through a part 
of this ground also drains the old 
cemetery, of which this has become a 
part, and has so drained it for many 
years without any injurious effects. 
The case was appealed to the Su- 
preme Court, which in rendering its 
decision said: 
The new cemetery adjoins the old one, and 
both are within the corporate limits of the 
town. The ground selected for the new 
cemetery is located on a mound between 
two natural water courses or streams, and 
there is no question but that the natural 
drainage of the entire tract is into these 
streams, as alleged in the petition. The evi- 
dence is overwhelming as to the character 
of the soil. The upper layer is black loam, 
from four to eight or ten inches thick, and 
the subsoil is clay, with a considerable mix- 
ture of sand, or, as described by many of 
the witnesses, it is sandy clay. It is also 
shown that such soil is well adapted for 
conveying water. It is also proven that at 
the south side of said ground an examination 
showed the soil to be porous and wet. 
The movements of subsurface waters are 
commonly somewhat obscure, but it is a 
well-known fact that the percolating water 
will travel great distances and that it forms 
channels for Itself. Medical scientists are 
now practically agreed that infectious dis- 
eases are germ diseases, and that the live 
germs may remain in the human body after 
death and interment, and be carried there- 
from in water to the streams and wells 
below. A mere statement of the location 
of this land and of the character of its 
soil and drainage clearly indicates to our 
minds that the burial of human bodies there 
will surely tend to contaminate the wells, 
springs, and streams receiving its drainage, 
“It is also contended that the plaintiffs 
purchased with full knowledge that the old 
cemetery was a nuisance, and they are, 
therefore, in no situation to complain of the 
new one. There is no evidence before us 
tending to show that any of the plaintiffs 
knew when they purchased their property 
that the old cemetery was a nuisance. They 
undoubtedly knew where it was; but it was 
not a nuisance per se, and it will not be pre- 
sumed that they had knowledge that it was 
a nuisance in fact. Furthermore, no issue 
in the nature of an equitable estoppel was 
tendered by the defendant. But, even if the 
plaintiffs were aware of the conditions 
created by the old cemetery, it does not 
follow that they must submit to an enlarged 
danger. 'We think the trial court reached 
the right conclusion, and the judgment must 
be, and is afRrmed.” 
