Crowell v. Londonderry , 63 N.H. 42 ( 1884 )

By the order of reference, the commissioners were directed to report at the request of either party upon each question raised in the written reasons of appeal. The reasons of appeal alleged in the first appeal are, — 1, that the appellant is unwilling that his land be taken and used as a cemetery, and that the selectmen did not first attempt to buy of him, or of others having land for a cemetery in suitable places which they were willing to sell; 2, that there was at the time the petition was presented, and at the time of the laying out, a dwelling-house of the appellant occupied by a tenant on the land taken; 3, that one of the petitioners was a brother of the wife of one of the selectmen who laid out the cemetery, and other petitioners were first cousins of the same selectman; 4, that only the return of the laying out was recorded by the town-clerk; 5, that the damages were insufficient.

The last reason appears to have been abandoned at the hearing before the commissioners. Of the remaining reasons, the first and second may be regarded as exceptions to the jurisdiction of the selectmen over the subject-matter of the petition; the third, as an exception to their jurisdiction over the parties; and the fourth, as an exception to the laying out for defect in the proceedings.

The statute provides for the taking of land for a cemetery when "land necessary therefor cannot be obtained in any suitable place at a reasonable price by contract with the owner." G. L., c. 49, s. 2. The object of the statute is to enable a town to obtain suitable ground for a public cemetery when it cannot be obtained by contract with the land-owner. By "suitable place" was intended a place not only convenient and accessible, but adapted by nature for a burial-place, and capable of improvement and adornment creditable to the living and respectful to the memory of the dead. The commissioners as well as the selectmen have found that no other place is so suitable as the plaintiff's lot. What is a suitable place is a question of fact to be determined on a consideration of all the circumstances of the particular case. The term is a relative one. What may be a suitable place in one community may not be in another. By "any suitable place" the legislature meant nothing less than the most suitable place, or a place as suitable as any other, or a place as suitable as the town can afford to pay for.

The provision of Gen. Laws, c. 49, s. 2, that no cemetery shall be laid out within twenty rods of a dwelling-house, store, or other place of business, was designed for the benefit of those who might be unwilling to live or work within a shorter distance of a public burial-ground. The associations from closer proximity might be disagreeable. The value of their property or the profitableness of their business might be diminished. The sanitary influences of a nearer location might be injurious. In this case there was no building upon the lot petitioned for when the petition was filed. It appears to have been placed upon the lot for the purpose of defeating the petition. The building is of such a character that there may be a question whether it is a dwelling-house, store, or other place of business. It would seem unreasonable to hold that the statute was intended for the benefit of the land-owner under such circumstances. But however that may be, the statute does not forbid the condemnation of land with a dwelling-house upon it for a public cemetery, the public paying for the house if the owner chooses not to remove it. None of the evils which it was designed to prevent can happen, because by the taking of the land the destruction or removal of the house must follow. Necessity may demand the taking of such a lot when no other suitable one can be had. When the land is condemned and the owner's damages are assessed and paid, the building can no longer be occupied by him, although the fee in the land may remain in him subject to the public easement of a burial-place, for his occupation of the land or building would be inconsistent with the public use for which the land was taken.

The board of selectmen had jurisdiction of the parties. If one of the board was disqualified by reason of his relationship to some of the petitioners, the jurisdiction of the board was not thereby ousted. They continued to have jurisdiction, although one of their number might be disqualified in this particular case. Oakley v. Aspinwall, 3 N.Y. 547,562. The objection could be waived and was waived by the appellant going to a hearing on the merits, with full knowledge of the disability and without objection. It is claimed that consent will not confer jurisdiction. However this may be when applied to subject-matter, or to the case of a party who cannot sue or be sued in an inferior court (Oakley v. Aspinwall, supra, 562), this board had jurisdiction of the subject-matter and of the parties.

The fourth reason of appeal is not well founded. The fact is found that the petition, order of notice, and hearing were recorded by the town-clerk June 9, 1882. A certified copy among the papers, made a part of the case, shows seasonable service of the petition and order of notice on the appellant, but shows no service on the town-clerk and no posting of a copy at the town-house. The posting of a copy has been proved. No question was raised at the hearing as to whether a copy was left with the town-clerk or not. If no copy was left with him, the defect was one which the appellant could waive and did waive at the hearing by not then objecting. It is not easy to see what interest he had in that question. The leaving of a copy with the town-clerk would have given the appellant no additional information. It does not appear that any other person was interested, or objected.

The whole case having been heard de novo before the commissioners, it is unnecessary to consider other objections to the proceedings of the selectmen, none of them going to the question of jurisdiction. The offer to prove that the town had by major vote relinquished to the appellant all claim upon his land for a cemetery, was the offer to prove an immaterial fact. A cemetery can be discontinued only by a vote of three fourths of the voters present and voting. G. L., c. 49, s. 4.

With these views it is unnecessary to examine the objections to the proceedings of the selectmen upon the second petition. The decision of the selectmen upon the first petition is affirmed. The second appeal is dismissed.

Case discharged.

ALLEN, J., did not sit: the others concurred.