CALHOUN et al. v. ALEXANDER, Co. Atty. (Court of Appeals of Kentucky. Dec. 19, 1913.) FERRIES (§ 31*)-REGULATION CHARGES. Though the courts have jurisdiction to determine what are reasonable rates for a ferry, yet, when the matter is once settled, it should remain so until there is some substantial change in conditions, as the statute does not contemplate that the owner of a ferry should be harrassed by continual application. court of the county, and thence to the Court of Appeals, both of which shall have jurisdiction of law and fact; but the Court of Appeals of only such facts as may be certified from the circuit court." While the courts have jurisdiction to determine what are reasonable ferry rates, the matter when once settled, should remain so until there is some substantial change in conditions. The question of what were reasonable rates on this [Ed. Note. For other cases, see Ferries, Cent. ferry was elaborately gone over in the case Dig. § 78; Dec. Dig. § 31.*] finally decided by this court on March 18, Appeal from Circuit Court, McLean 1911; and only about seven months elapsed County. after that decision before this new proceedProceeding by R. Alexander, County At-ing to relitigate the same question was betorney, against Margaret Calhoun and others, gun. No substantial change had occurred to reduce ferry rates. From a judgment re-in conditions since the former decision. It ducing the rates, defendants appeal. Revers- is not contemplated by the statute that the ed, and remanded for a judgment dismissing owner of a ferry should be harrassed by conthe proceedings. tinual applications to the court to change the ferry rates. No reason is shown why all the matters now shown could not have been preIt is not a proceeding sented in that case. W. T. Ellis, of Owensboro, and Joe H. Miller and Wm. B. Noe, both of Calhoun, for appellants. R. Ålexander, of Calhoun, for appellee. HOBSON, C. J. Margaret Calhoun and Irene Gates and her children own a ferry across Green river between Calhoun and Rumsey in McLean county; Mrs. Calhoun owning the ferry right on the Calhoun side and Mrs. Gates and her children that on the Rumsey side of the river. This proceeding was instituted by R. Alexander, as county attorney of McLean county, by notice served on them on October 28, 1911, in which he sought to reduce the rate of toll on the ferry to a person on foot from five cents each way to two cents each way. The case coming on for trial in the county court, the county court overruled the motion, refusing to disturb the existing rate of toll. The county attorney appealed to the circuit court, and in the circuit court, the evidence being heard anew, the circuit court entered a judgment, reducing the rate of toll on foot passengers from five cents each way to three cents. From this judgment the owners of the ferry appeal. In the year 1910 a similar proceeding was instituted by Alexander as county attorney, against the owners of this ferry, to reduce the rate of toll, and, the rates having been reduced, the owners of the ferry appealed to this court, where the judgment was affirmed on March 18, 1911. See Calhoun v. Alexander, County Attorney, 143 Ky. 53, 135 S. W. 407. There was then pending in the courts a proceeding instituted by J. S. Willis, the purpose of which was to obtain a judgment declaring that the ferry privilege referred to had expired or was no longer in existence. The circuit court dismissed the proceeding and that judgment was affirmed by this court on October 27, 1911, or about the time that this proceeding was instituted. Section 1801, Ky. St., provides: "An appeal from any order concerning a ferry or ferry rates, in favor of any one interested, shall lie to the circuit for a new trial, but a new application to change the rates. The evidence is conflicting. The owners of the ferry now get an annual rental of $1,080 for it; to reduce the rate on foot passengers would reduce the rent to $600 or $700 a year. While sometimes more than one passenger is taken over at a time, in the majority of cases the trip is made alone for one passenger. When the river is low, it is only about 125 yards wide, but a large part of the year the river is full of water, and sometimes covers the bottoms. The ferry must be run at all times and under all conditions. The ferry is a common carrier of passengers, and the responsibility of other common carriers attaches to it. The value of the ferry franchise is not to be fixed alone by the value of the boats and the value of the lots on the bank apart from the ferry franchise. The ferry franchise is a valuable right, carrying with it public responsibilities. While the evidence is conflicting in view of all the facts, the question of reasonable rates for the ferry, which has so lately been settled, should not now be relitigated. Judgment reversed, and cause remanded for a judgment dismissing the proceeding. CAVE HILL CEMETERY CO. v. GOSNELL Under Ky. St. § 1336, providing that any person who shall willfully mutilate the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in any cemetery or place of sepulcher shall be guilty of a misdemeanor, the sanctity of a burial ground does not depend upon whether the particular portion is filled with graves; the purpose of the statute being to protect the cemetery, and not merely the graves in it. [Ed. Note.-For other cases, see Cemeteries, Cent. Dig. §§ 24, 25; Dec. Dig. § 22.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 2. STATUTES (§ 220*) - CONSTRUCTION QUIESCENCE BY LEGISLATURE. Ac-private or corporate profit; that all of its lands and property were held and used unWhere the Legislature has long acquiesced in the construction of a statute, and has framed der perpetual trust for cemetery purposes; its legislative policy in accordance with such that a part of the property sought to be subconstruction, the ruling cannot subsequently bejected was occupied by the United States disturbed. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 298; Dec. Dig. § 220.*] 3. MUNICIPAL CORPORATIONS (§ 434*)—PUBLIC IMPROVEMENTS ASSESSMENTS-CEMETERY PROPERTY. Ky. St. § 1336, making the mutilation of cemetery property and graves a misdemeanor, applies to all property used for burial purposes, and hence the property of a cemetery association is not subject to execution sale for assessments imposed by a municipality for public improvements. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1045-1050; Dec. Dig. § 434.*] 4. CEMETERIES (§ 3*) — PROTECTION - PUBLIC POLICY. It is sound public policy to protect the sepulcher of the dead. [Ed. Note.-For other cases, see Cemeteries, Cent. Dig. § 3; Dec. Dig. § 3.*] National Cemetery; that the enforcement of the lien would be a violation of the general statutes of the state and the acts of Congress prohibiting the violation of graveyards; that by an act of March 9, 1854 (Loc. & Priv. Acts 1853-54, c. 890), it was provided that the corporation might acquire by gift, devise, or purchase not exceeding 300 acres of land, and that all lands acquired by it should be perpetually held and used for the purposes of a rural cemetery; that by an amendment to this act it was authorized to sell to purchasers burial lots, and issue to them certificates vesting in them the right to use the lots as a burial place for the dead, but not to be subject to execution or in an manner liable for the debts of the purchaser; that all the lands in the cemetery grounds should 5. MUNICIPAL CORPORATIONS (§ 586*)—PUB-be forever exempt from taxation; that one or CEMEAs cemetery property is free from the lien of special assessments for public improvements, such as streets, the court cannot, by indirection, cast such burden on a cemetery corporation by making it personally liable for the assessment, and subjecting thereto moneys in its hands which were to be used for the maintenance and beautifying of the cemetery. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1304-1306; Dec. Dig. § 586.*] 6. MUNICIPAL Corporations (§ 586*)—PUBLIC IMPROVEMENTS-PERSONAL LIABILITY. A landowner is not personally liable for an assessment for public improvements placed in front of or near by his land. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1304-1306; Dec. Dig. § 586.*] more soldiers of the United States were buried on the land set apart to the United States National Cemetery; that the land sought to be subjected lies wholly within the grounds of the cemetery which, under the charter and deed from the city of Louisville, is to be perpetually held and used for a cemetery; that the grounds are inclosed by a permanent wall, 13 inches thick and 9 feet high, made of vitrified brick laid in cement; that the land sought to be subjected has been graded and prepared for use as burial lots; that shrubbery, trees, and ornamental plants have been set out and are growing thereon; that some graves are upon the land, and that the land cannot be lawfully used or occupied by a purchaser without injuring the wall inclosing the cemetery, or interfering Appeal from Circuit Court, Jefferson Coun- with or mutilating the grave or graves and ty, Chancery Branch, First Division. Action by G. W. Gosnell against the Cave Hill Cemetery Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Randolph H. Blain, of Louisville, for appellant. William Furlong, of Louisville, for appellee Gosnell. J. W. S. Clements and Pendleton Beckley, both of Louisville, for appellee City. HOBSON, C. J. George W. Gosnell received an apportionment warrant from the city of Louisville against the property of the Cave Hill Cemetery Company for paving with brick a portion of the carriage way of Payne street. The amount of the warrant was $1,115.49. He brought this suit against the cemetery company to subject the abutting land to its payment. The cemetery company answered in substance that it was a quasi public corporation without stockholders, empowered to conduct a cemetery, not held for gravestones included in it, or without destroying the only entrance to the cemetery from Payne street; that over 43,000 of the dead are buried in the cemetery, and that an entrance into it from Payne street is necessary for the proper use and maintenance of the cemetery; that by reason of the premises the city had no power to make the cost of the improvement of Payne street a charge upon the abutting property used as a cemetery, or to subject the property, or any part thereof, to sale. The plaintiff demurred to the answer. The circuit court overruled the demurrer to the answer, but intimated that, though the land could not be subjected, the cemetery company might be required to pay the apportionment warrant. There was an issue between the parties as to how much of the cost of building the street should be apportioned to the cemetery company; but this was settled by an agreed order by which Gosnell recovered of the city of Louisville $595.32. And it was agreed that the balance For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of the warrant, to wit, $520.17, was the correct proportion of the contract price which should be calculated against the land of the Cave Hill Cemetery Company; but it was stipulated that this judgment should not operate or be construed in any way as an admission by the company that it, or its land, or its funds were in any manner liable for the balance of the apportionment warrant. The plaintiff filed an amended petition, in which he alleged that the cemetery company had funds on hand more than sufficient to pay the claim. The cemetery company demurred to the amended petition; its demurrer was overruled. It then filed an answer, in which it alleged that it was engaged in the improvement and ornamentation of the cemetery, and that it received money from the sale of burial lots, also money from lot owners to be used exclusively in the annual care of their respective lots and graves; that its revenues were sufficient to satisfy its running expenses only by economy; and that all the money it received was dedicated to the care, and upkeep, and beautifying of the cemetery. The circuit court sustained a demurrer to its answer, and entered a judgment, whereby he adjudged the plaintiff a lien on the property of the cemetery for $520.17, with interest and cost, excepting out of the judgment the land conveyed to the United States National Cemetery. It was further adjudged that, it appearing to the court that the lot of land against which the lien was adjudged is inclosed as part of a burial ground of the dead, the same should not be sold by the commissioner at public sale; but that, it appearing that the cemetery company had more than sufficient funds accumulated as a surplus, it was adjudged that it within 20 days pay into court a sum of money sufficient to satisfy the decree. The cemetery company appeals. In Louisville v. Nevin, 10 Bush, 549, 19 Am. Rep. 78, a suit was brought to subject the land of a cemetery to a street assessment. Refusing to subject the property, the court said: "The chancellor will not decree that to be sold which cannot lawfully be used for the ordinary purposes 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. Section 26, art. 17, c. 29, of the General Statutes reads as follows: 'Any person who shall wilfully mutilate the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in or inclosing any cemetery or place of sepulchre; or shall violate the grave of any person by wilfully destroying, removing, or injuring the head or foot stone, or the tomb over, or the inclosure protecting any grave, or by digging into or plowing over, or removing any ornament, shrubbery, or flower placed upon any grave or let shall be fined not less than ten nor more than one hundred dollars, or imprisoned not exceeding six months, or both, as a jury may determine.' If the lot in question was sold, the purchaser could not use it for any of the purposes for which town lots are ordinarily used without subjecting himself to the penalties denounced by the foregoing statute, and making the court a particeps criminis in his offense. If it be said that the purchaser must take care of it himself, it will be a sufficient answer that the court ought not to offer that for sale which it will not allow to be used by the purchaser for any purpose that can be of the slightest value to him. The city had complete authority to contract for the work, but had no authority to make it a charge on the abutting property, and is therefore liable to the contractor for the price of his work. Murphy v. City of Louisville, 9 Bush, 189." [1] The statute quoted is still in force, and is now section 1336, Kentucky Statutes. In that case it appeared that the lot was filled with graves, and that the trustee had not funds in his hands belonging to the trust with which to pay the assessment. It does not appear here that the lot sought to be subjected is filled with graves; but we do not regard this as material, for the reason that the statute protects the monuments, fences, shrubbery, and ornaments no less than the graves, and the purchaser would be liable for the same penalties if he disturbed these as he would be if he disturbed a grave. The purpose of the statute is to protect the cemetery, and not merely the graves in it. [2, 3] The question came before this court again in Colston v. Eastern Cemetery Co., 15 S. W. 245, 12 Ky. Law Rep. 763. In that case the cemetery company was incorporated in the year 1854 (Loc. & Priv. Acts 1853–54, c. 469), and by its charter was exempt from sale for any cause under an execution or decree; but by an act of March 24, 1882, cemetery property was made liable for assessment for a street improvement in Louisville. This court adhered to the conclusion reached in Louisville v. Nevin, and held the amendatory statute not operative, as the charter of the corporation was granted before the act of 1856. It concluded its opinion with these words: "It must be conceded that in a large city like Louisville the existence of burial grounds becomes a matter of necessity, and, if not placed under corporate control, where money may be invested and donated for the purchase and improvement of grounds to be used for cemeteries, the expense for such a purpose would be a public burden, and hence the state is, or should always be ready to encourage the creation of such corporations, not only to lessen the rate of taxation, but to invest the corporate body with the power to raise such funds as will enable them to beautify and ornament the homes of the dead. This was the object of the charter creating this cemetery, where is found, from the testimony, at the time this action was instituted, nearly 40,000 graves, and no chancellor should authorize the tax gatherer to invade this territory of the dead to enforce the collection of any assessment made by a state, county, or municipality, or take from the faithful trustee the funds set apart from the sale of lots, and apply them to such a purpose, when, by the terms of the charter, the land itself is exempt from execution." Under these decisions the land of the cemetery company in question cannot be subjected to the apportionment warrant, and is not subject to a lien therefor, for, under the construction of the statutes there adopted, section 1336, Kentucky Statutes, must be held as creating an exception out of the statutes giving a lien for street improvements. It cannot be presumed that the Legislature intended to create a lien upon property when it declared it unlawful to enter upon it or to disturb it in any way. To hold that the purchaser would violate section 1336 if he took possession of the property is necessarily to hold that the Legislature did not intend to create a lien upon it, for it cannot be presumed that it intended a vain thing. The effect of these decisions is that section 1336, Ky. St., is to be read into the statutes creating the lien on the abutting property, and when it is so read it necessarily excepts cemetery property out of their operation. If the section of the statute giving the lien had contained as a proviso the words contained in section 1336, this would admittedly be their effect, and the result is the same when by judicial construction they are to be read into it or as qualifying it. The Legislature, since these decisions were rendered, has acquiesced in this construction. There is no statute now in force giving the city a right to subject cemetery property; the amendatory act above referred to not having been brought over into the present statutes. The construction of the statute, having been acquiesced in by the Legislature, cannot now be disturbed. vert the funds from the trust to which they were dedicated. In Roe & Lyon v. Scanlan, 98 Ky. 25, 32 S. W. 216, 17 Ky. Law Rep. 595, a county was indebted to a contractor for the construction of a courthouse, and had set apart a fund for the payment of the debt. Mechanics and materialmen, having claims against the contractor for labor done and material furnished in the erection of the building, had given the notice required by the statute, and it was held that they thus acquired a lien upon the fund, although the lien could not be enforced against the courthouse. The same rule upon like facts was applied in Noonan v. Hastings, 101 Ky. 313, 41 S. W. 32, 19 Ky. Law Rep. 485, 72 Am. St. Rep. 419; Allen County v. Fidelity & Guaranty Co., 122 Ky. 833, 93 S. W. 44, 29 Ky. Law Rep. 356. But these cases have no application here. The county had contracted for the building of the courthouse, and had set aside the fund to pay for it. The fund so set aside represented the building, and in giving the laborers and materialmen a lien upon the fund no part of it was diverted from the purpose for which it was dedicated. But here the cemetery company has made no contract; it holds the funds in its hands dedicated to other purposes, and these funds do not represent in any way the lots sought to be subjected, and have no connection therewith. In those cases there was a personal liability for the price of the building; here there is no personal liability. It is a sound public policy to protect the burying place of the dead. Families scatter; family burying grounds sooner or later fall into decay, and experience has shown that the only way to protect permanently burying grounds is to have some organization similar to appellant. The purchasers of lots in the cemetery bought them and paid for them under a contract that the money they so paid should be used in protecting, keeping up, and ornamenting the cemetery. This constituted a large part of the consideration. To require this money now to be paid out for other purposes would be to divert the trust fund from the purposes to which it was dedicated, and to impair the obligation of the contract. This cannot be done. We do not see, therefore, that either the land may be subjected to the claim or that the cemetery company may properly be required to pay it out of the funds in its hands. Judgment reversed, and cause remanded for a judgment as above indicated. [4-6] It remains to determine if the funds in the hands of the cemetery company may be subjected. To require the cemetery company to pay the apportionment warrant when its land is not subject to a lien would be in effect to make the owner of the property personally liable for the amount sued for. But we have often held that the owner is not personally liable for the cost of a street improvement. Orth v. Park, 117 Ky. 791, 79 S. W. 206, 80 S. W. 1108, 81 S. W. 251, 25 Ky. Law Rep. 1910, 26 Ky. Law Rep. 184, 342; Long v. Barbour Asphalt Co., 151 Ky. 1, 151 S. W. 6, and cases cited. To require the cemetery company to pay the money into court is only in another form to subject its property to the lien. All the funds in the hands of the cemetery company are held under a trust to maintain the cemetery, and DEVISED-CONTINGENT REMAINDERS. to require these funds to be paid out for Testator devised certain land to four sons other purposes is to require the trustee to di- by name for their lives, but after their death For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes GOFF v. RENICK et al. (Court of Appeals of Kentucky. 1913.) Dec. 19, 1. WILLS (§ 634*) – CONSTRUCTION - ESTATE or the death of either of them, then to the heirs of their or his body, and if either or any of the devisees should die without issue then living, then the land was devised to the survivor and to the descendants then living of those that might be dead, to be divided equally among those surviving and the representatives of those who might be dead, the descendants of either of the brothers to represent their ancestor. Held, that the will created contingent remainders as to the share of one of the brothers who had a son living, the first taker after the life estate being the son, provided he outlived his father, but if his father survived him, then the share passed to the next in remainder, who were the father's three living brothers, and last in remainder to the children or descendants of such brothers, who would take if, at the time of the death of the life tenant, his son and the three brothers were dead. [Ed. Note.-For other cases. see Wills. Cent. Dig. 88 1488-1510; Dec. Dig. § 634.*] Geo. C. Webb and S. M. Wilson, both of Lexington, and J. F. Winn, of Winchester, for appellant. Pendleton, Bush & Bush, of Winchester, for appellees. SETTLE, J. This action was brought, pursuant to section 491, Civil Code, by the life tenant and remaindermen to obtain a decree for the sale of 410 acres of land in Clark county, described in the petition, and the reinvestment of its proceeds in other real estate. By the judgment rendered, the sale of the land was ordered as prayed in the petition, and it was thereafter sold at public auction, after due advertisement, by the masGoff, the highest and best bidder, at the price ter commissioner to the appellant, Ben. D. of $170.70 per acre, aggregating about $70,2. REMAINDERS (§ 16*)-SALE OF PROPERTY-000. Following the filing of the report of PROCEEDINGS-PARTIES. sale by the master commissioner, appellant filed numerous exceptions thereto, but, on the hearing of these exceptions, they were over cuted. Civ. Code Prac. § 491, provides that in an equitable action by the owner of a particular estate of freehold in possession, or by his guardian or committee, against the owner of the reversion or remainder, or, if the remain-ruled by the circuit court, and the sale conder be contingent, against the person, if in be- firmed. From the judgment entered in puring, in whom it would have vested if the con- suance of these rulings, this appeal is prosetingency had happened before commencement of the action, real property may be sold for reinvestment of the proceeds in other real esWhile, in the brief of counsel for appeltate. Held, that where real property was de-lant, practically all of the exceptions that vised to testator's four sons for life, remainwere filed in the court below to the report of der to the heirs of their bodies, and if any of sale are directly or indirectly relied on, we the devisees should die without issue then living, then to the survivor and the descendants will consider only such of them as have any then living of those that might be dead, etc., material bearing on the validity of the sale. and it was sought to sell the interest of one It is contended by appellant that there was of the brothers who, at the commencement of the action, was alive and had an adult son, the a fatal defect of parties, in that all persons contingent remaindermen, to wit, the other interested in the property sold were not made brothers and their descendants, were bound by parties to the action. Before considering the proceedings by representation, and were not this contention, it will be necessary to deternecessary parties. mine what persons were interested in the land. The title to the land sold was derived from the will of Abram Renick, deceased, and from the commissioners' deed made pursuant thereto, by which it was conveyed. The clause of the will devising this land is as follows: "All the land herein given to Abram Renick, Jr., Morris Renick, Brink Renick and Scott Renick I devise to them, each of them during their several natural lives, but after their death or the death of either of them to the heirs of their or his [Ed. Note.-For other cases, see Remainders, Cent. Dig. 11; Dec. Dig. § 16.*] 3. REMAINDERS (§ 16*)-SALE-PARTIES-JOINDER-PLAINTIFFS OR DEFENDANTS. Where contingent remaindermen are necessary parties to a proceeding to sell land for reinvestment, it is not necessary to make them defendants if they voluntarily, join as plaintiffs and pray for the relief asked in the complaint. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. § 16.*] 4. REMAINDERS (§ 16*)-SALE OF PROPERTY-body. -PROCEEDINGS-PROOF-AFFIDAVIT. Under Civ. Code Prac. §§ 543-547, allowing the taking of proof by affidavit in certain cases, such practice was properly permitted in a proceeding to sell real property devised for life subject to contingent remainders, where the parties in interest were all plaintiffs and the object to be attained by the action was for the benefit of all. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. § 16.*] Appeal from Circuit Court, Clark County. Action by J. Scott Renick and others for the sale of certain real property for reinvestment. From an order confirming the sale and overruling exceptions interposed by Ben. D. Goff, the purchaser, he appeals. Affirmed. If either or any of said devisees should die without issue then living, I hereby devise said land to the survivor and to the descendants then living of those that may then be dead to be divided equally among those surviving and the representatives of those who may be dead, the descendants of either of said brothers to represent their ancestor." The commissioners' deed contains the following clause: "To have and to hold said property with its appurtenances unto the said grantee (J. Scott Renick) as provided in the will of Abram Renick, deceased." [1] The devisees were individually named by the testator, Abram Renick, and the tract of land here involved was that received by J. Scott Renick under the will in question. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |