PARK AND CEMETERY. 
309 
permanent fund is created sufficient, when 
invested, to produce an income large enough 
to meet the expense of keeping the grounds 
perpetually in good condition. In effect, 
the complainant is a trustee to sell and 
convey lots for burial purposes, unable to 
create debts upon the faith of the property, 
unable to dispose of the property except of 
the designated and perpetual use. The land 
is ‘wholly exempt from taxation of any 
kind whatsoever,’ and no street, highway, 
railway, sewer, or canal can be opened or 
constructed through the grounds without 
the consent of the board of directors of 
complainant. By 3 Comp. Laws, § 11711, 
injuring tombs, monuments, gravestones, 
or other memorials to the dead, or any 
fence or railing intended for protection or 
for ornament, or mutilating or destroying 
any tree, shrub, or plant placed or being 
within any cemeter}-, is made a misde- 
meanor. The obvious purpose of the act 
cannot be accomplished if the land of a 
cemetery association may be sold in an ad- 
versary or adverse proceedings. It is im- 
possible to reconcile the purpose to bestow 
perpetual burial rights in land, and to pun- 
ish an)- interference therewith, with a pur- 
pose to disturb those rights whenever a 
special improvement is made in the vicinity 
of the land. . . . 
“An answer to the defendant's prayer 
that a sale be now ordered by the court is 
found in the opinion given in Louisville 
vs. Nevin, 10 Bush (Ky.), 549, 19 Am. 
Rep., 78, in which case an order for a sale 
of a cemetery to enforce a special assess- 
ment for street improvement was denied. 
In that case, unlike the one at bar, the lots 
in the cemetery were completely filled with 
graves from which no revenue was derived, 
and the trustee had no funds to pay the 
assessment. In the case at bar it is ap- 
parent that the corporation complainant 
will yet derive from sale of lots, or of 
burial permits, a revenue. But, in view of 
the provisions of the act under which com- 
plainant exists, the principle to- be applied 
in each case is, in my opinion, the same. 
The court said : 
“ ‘The lot having been completely filled 
with graves, and thus rendered useless for 
any other purpose than as a resting place 
for the dead, unless their graves are to be 
desecrated by being built over or dug up, 
or by the use of the property for the ordi- 
nary purposes of town lots, the chancellor 
would hesitate to lend his aid to subject it 
for sale. We know it has been intimated 
by courts for whose opinions we have a 
high regard that this is a matter of senti- 
ment with which courts have nothing to do ; 
but fortunately we are not reduced to the 
alternative to decree the sale of a grave- 
yard already filled with the ashes of the 
dead, or of seeming to refuse to carry out 
the commands of the law. The chancellor 
will not decree that to be sold which can- 
not be lawfully used for the ordinary pur- 
poses to which property of a like character 
is commonly applied, and especially when 
there is no imaginable beneficial use to 
which it can be put by the purchaser which 
would not subject him to punishment under 
the penal statutes of the state.’ 
“See, also. Mount Auburn Cemetery vs. 
Cambridge, 150 Mass., 12, 22 N. E., 66, 4 
L. R. A., 836. 
“The defendant city had and has no lien 
upon the complainant’s property resulting 
from the paving assessment, the sale of it 
cannot be sustained, and the deeds issued 
upon the sales and the records thereof 
must be canceled and set aside. Nor can 
a sale of the premises be now decreed by 
the court.’’ 
The opposing opinion, written by Judge 
Brooke, and concurred in by three judges, 
is as follows : 
“I quite agree with my Brother Ostran- 
der in holding that the lands of com- 
plainant devoted to cemetery purposes can- 
not be sold for the purpose of collecting a 
special assessment. To permit the title to 
be alienated for the collection of a special 
assessment would be to work exactly the 
same evils as would follow the purpose 
of collecting a general assessment. 
“I do not agree, however, that Comp. 
Laws, § 8406, should be construed as re- 
lieving the lands of complainant, devoted 
to cemetery purposes, from a special assess- 
ment for street improvement. The courts 
have very generally held that statutes ex- 
empting cemeteries from taxation do not 
exempt them from special assessments for 
the cost of paving streets abutting their 
property. 
“Our general tax law covering the sub- 
ject (C. L., § 3830), while providing that 
the lands used exclusively as burial 
grounds, etc., shall be exempt, provides : 
“ ‘The stock of any corporation owning 
such burial grounds shall not be exempt.’ 
“Defendant by the second prayer in its 
cross-bill asks alternative relief to the fol- 
lowing effect : 
“ ‘That it he decreed by the court 
that said special assessment ... is a 
debt due from said complainant to said 
city.’ . . . 
“The relief prayed for I think should 
be granted ; and, there being no dispute as 
to the amount of the tax or the penalty 
and interest, a decree in favor of the de- 
fendant city should be entered in this 
court. 
“The money may not be realized upon 
this decree from a sale of the lands of 
complainant, devoted to cemetery purposes, 
but any other assets of complainant which 
could be reached by execution would be 
liable. Under this disposition of the case 
the rights of the holders of burial privi- ’ 
leges in the cemetery proper would be 
protected, and complainant should be com- 
pelled to bear its just proportion of the 
municipal burden caused by the special 
improvement.” 
Exemption of Cemetery Land from 
Taxation. 
The New Jersey statute which e.xempts 
from taxation graveyards not exceeding 
ten acres of ground, cemeteries and build- 
ings for cemetery use erected thereon, does 
not exempt from taxation a tract of land 
belonging to a cemetery acquired by a sep- 
arate deed and lying between high-water 
mark and the dock line of a tidal river, 
separated from the other cemetery property 
by a railroad, when only a small portion of 
the tract has been filled in, and none is 
now used for interments or is likely to be 
so used in the near future. In reaching this 
decision in the case of Mt. Pleasant Ceme- 
tery Co. vs. Mayor and Council of New- 
ark, 98 Atlantic Reporter, 448, the New Jer- 
sey Court of Errors and Appeals said : 
“We do not doubt that it may be de- 
sirable for the appellant to control this land 
under water in order to prevent possible 
nuisance in the future. So it might be im- 
portant for the same purpose to control the 
land across the street from its main en- 
trance. The appellant might think it de- 
sirable to tear down the buildings and pre- 
pare the land for possible use for inter- 
ments in the more or less distant future, 
but we cannot believe it could thus with- 
draw the land from the tax levy.” 
ASKED AND ANSWERED 
An exchange of experience on practical matters bv our readers. You 
are invited to contribute questionsand answers to this department 
Keeping Birds Off Spire Monuments. 
Editor ,‘\.sked and Answered: We re- 
cently erected a spire monument and the 
birds light on the point or apex and soil 
it. Our customer wishes us to remedy that 
trouble if possible. We have an idea that 
we have seen a metal point. Do you think 
that method has ever been used ? We 
thought perhaps aluminum would be pref- 
erable. Could you give us the names of 
firms who furnish aluminum ? — A. W. Mont. 
Co. 
You can have anything made in the way 
of aluminum work from either of the fol- 
lowing firms: Chicago Aluminum Cast- 
ings Co., 2647 Ogden avenue, Chicago, 111. ; 
.Mumimnn Co. of .\merica, 110 .S. Dear- 
born street, Cliicago, 111. 
We know of onl\' one instance of tliis 
kind, being tbc 1 learn monument in Wood- 
lawn. tills cit,v. Tins bas a bronze apex, 
and it would seem to ns as hardly calcu- 
lated to prevent birds resting on the top, 
as complained of by lonr correspondent. 
Our own view of tbe matter would be, if 
tins is a source of objection to the writer, 
to place a very small aluminum cap with a 
needle point at tbe apex, whicb would prob- 
ably obviate the difficulty and not interfere, 
by reason of its small size, with the ch.ir- 
acter of the structure. 
New York. 1 I.xkhiso.v Uk.witk Co. 
