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Mullins v. Cemetery Assn.

tion of sewers in that district had been issued against defendant prior to those in suit, one for $9,104.30, and the other for $1,611.15. The plaintiff was put on the stand by the defendant and testified that when he made his bid for the work he knew that the land of the defendant was used for a cemetery. He also testified that he had built some sewers for Elmwood Cemetery.

On the two questions, as to whether and to what extent sewers are necessary to cemeteries generally and to this one in particular, and as to whether the inclusion of this cemetery in such district was a reasonable exercise of the power of the Common Council, there was no evidence offered except as shown in the above statement.

I. The first point in appellant's brief is therein stated as follows:

"As to the property of this defendant, the imposition of the special assessments in question could result in no possible benefit, actual or potential., The acts were manifestly oppressive and an unreasonable exercise of municipal authority and therefore void. The trial court erred in not so finding and deciding." In its printed argument is this statement:

"The testimony shows from the topography of the district that there was no engineering reason why this tract of land might not have been established as a sewer district by itself and thus relieved of all burden of the construction of lateral sewers which are essential to the comfort and health of the living, but which are entirely useless for the city of the dead."

Mullins v. Cemetery Assn.

There is a presumption in favor of the reasonableness of such an ordinance, and the burReasonable den of establishing the contrary rests upon the objector. [Hislop v. Joplin, 250 Mo. Sewer Tax 588; St. Louis v. Theatre Co., 202 Mo. on Cemetery'


of District


That prima-facie case must be overcome "in the most satisfactory manner." [Morse v. City of West Port, 110 Mo. 502.]

The language of appellant's counsel is an unequivocal claim that it has no need for sewers and is under no obligation to furnish them to others; in other words, that its cemetery, for the purpose of sewer construction at least, has ceased to be a part of the city within whose limits it is situated.

We will first consider the question as to whether such a cemetery is benefited by the construction of sewers. "Drainage of a district for sanitary purposes is the ground upon which the compulsory construction of sewers, and the imposition of special taxes to pay the cost thereof, is authorized." [Johnson v. Duer, 115 Mo. 1. c. 377.]

In Prior v. Construction Co., 170 Mo. 439, it was held that plaintiff's property, located on high ground, was benefited by the construction of a sewer which prevented its sewage from being cast upon the streets and sidewalks and into the cellars in a lower part of the district. In other words, each tract of land in a city should bear its portion of the burden of preventing the passage of any noxious thing from it into or onto other lands. Whatever discharges that burden is a benefit to the property whence the noxious substance emanates. Concede that the dead are indifferent to the question, the living have a right to demand that noxious substances shall not be disseminated from a cemetery into and over other lands.

Mullins v. Cemetery Assn.

"Thou shalt not bury a dead man in the city" was one of the laws of the Twelve Tables.

In Kincaid's Appeal, 66 Pa. St. 411, SHARSWOOD, J., said: "No one can doubt the power of the Legislature to prohibit all future interments within the limits of towns or cities. In ancient times, in Greece and Rome, such was the universal rule."

In Lowe v. Prospect Hill Cemetery Assn., 58 Neb. 94, the defendant was enjoined from using a tract of ground in Omaha as a cemetery. The evidence showed that the ground in that vicinity was very pervious. Expert witnesses testified that disease germs often existed and multiplied in dead bodies, and were disseminated thence through the ground into neighboring lands, contaminating them, and rendering the water in the wells noxious to the health of the inhabitants. Other cases of like import are Clark v. Lawrence, 6 Jones Eq. (N. C.) 83; Jung v. Neraz, 71 Tex. 396; Los Angeles v. Hollywood Cem. Assn., 124 Cal. 344; Kingsbury v. Flowers, 65 Ala. 479; Sohier v. Trinity Church, 109 Mass. 1; and Partridge v. First Independent Church, 39 Md. 631. See also Joyce's Law of Nuisances, sec. 393.

In Town of Lake View v. Letz, 44 Ill. 81, the court had under consideration an ordinance which prohibited the opening of any cemetery in the town. (township) without the permission of the trustees. It was there said:

"There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. Now, the town of Lake View is a rural township, containing about eleven sections or square miles of territory. It is therefore impossible to hold that a cemetery, anywhere within the limits of the town, must be necessarily a nuisance, and can be prohibited

Mullins v. Cemetery Assn.

in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand, be so located and arranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape garden, and as free from all reasonable objection.

In Lake View v. Rose Hill Cem. Co., 70 Ill. 191, is the following:

"Burial places are indispensable. Convenient to the city of the living, a depository of the dead must be established and maintained. It concerns the public health, and if such places were not prepared by private enterprise, it would be the duty of the State to act in the premises."

It will be noticed that the court does not there approve the location of cemeteries in populous cities. It speaks of them in places "convenient to the city of the living." On the other hand, it was said in Ellison v. Commissioners, 58 N. C. 57: "If the grounds be arranged and drained, and the burial of the dead be conducted as elsewhere in such establishments, we incline decidedly to the opinion, it will not be a nuisance, either public or private."

We cite those cases only for the purpose of showing that the defendant is not justifiable in asserting that its land should have been excluded from the sewer district merely because it is a cemetery. There is no evidence in the case to show that sewers are not beneficial in the sanitation of this cemetery. In the absence of a showing to the contrary, we must presume that the Common Council was fully informed on that subject, and acted properly in accordance with that information. The evidence does show that the sewers for the construction of which the tax

Mullins v. Cemetery Assn.

bills were issued serve to carry away the surface water from the cemetery.

Appellant claims that the cemetery might have been made into a sewer district by itself, so as to relieve it of the burden of construction of the lateral sewers. True, it might have been done; but there is no reason appearing why it should have been done. The appellant complains, not that a discrimination was made against it, but that no discrimination was shown in its favor. We have seen that the law has through all the past discouraged the location of cemeteries in populous districts. Real estate men who were witnesses on both sides in this case testified that the cemetery affected the value of real estate in that vicinity. We feel justified in assuming that such value was thus affected adversely. There is no sound reason why the cemetery should be relieved of its share of the burden of getting rid of a condition, caused to some extent by its presence there. The district, so far as we can understand the situation, is homogeneous, a proper "unit" in the general system of sewers. By carrying out the work of sanitation the cemetery may become more and more a comfort and an ornament to the community, and that community may become a more attractive

framework for the cemetery.

There is another fact in the case which deserves consideration. The tax bills against the land of the defendant seem very large. That is caused by the fact that there are thirty-five acres in the cemetery. The "area rule" is firmly grounded in our law. The Common Council had no choice in the matter except to tax the cemetery in proportion to its area, or relieve it altogether. It doubtless appreciated the serious difficulties in the matter, but its judgment must stand in the absence of evidence sufficient to show that it was unreasonable. Complaint is

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