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Temple v. City of Petersburg

182 Va. 418, 29 S.E.2d 357 (1944)

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Temple v. City of Petersburg

Virginia Supreme Court of Appeals

182 Va. 418, 29 S.E.2d 357 (1944)

Facts

The city of Petersburg, Virginia (the city) (defendant), desiring to provide a proper place to re-inter bodies that had been exhumed from a strip of land at a local cemetery that had been taken by eminent domain for a road improvement, sought to enlarge the cemetery by adding a tract of 1.01 adjoining acres of land that the city acquired in 1942 for cemetery purposes. Temple, (homeowners) (plaintiffs), whose residence was 70 feet from the proposed enlargement at the nearest point, sued the city for violating a state statute that provided that “[n]o cemetery shall hereafter be established within the corporate limits of any city or town; . . . nor within two hundred and fifty yards of any residence without the consent of the owner.” The trial court initially temporarily restrained the city from using the 1.01-acre lot for an addition to the cemetery but eventually dissolved the injunction and denied relief to the homeowners who appealed. The homeowners argued that the purpose of the statute was to protect residences and lands from the ill effects growing out of proximity to a cemetery and that enlargement of an existing cemetery constitutes the establishment of a cemetery within the meaning of the statute. Otherwise, they argued, it makes no sense to protect residences against the establishment of a cemetery but not the enlargement of existing cemeteries because the evil created by one is the same as that created by the other. The city, however, argued that enlarging an existing cemetery is not the establishment of a cemetery as the word is used in the statute and the “hereafter established” language clearly does not mean that an already existing cemetery may not hereafter be enlarged and, therefore, it had not violated the statute.

Rule of Law

Issue

Holding and Reasoning (Gregory, J.)

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