San Antonio daily light. [volume] (San Antonio, Tex.) 1886-1907, 1886-06-07
THE GRAVE YARD SUIT.
The Facts in the Case Fully Given b!
Judge billiard.

The Facts in the Case Fully Given by
Judge billiard.
Editor s. A. LIGHT.
Having observed in two OF the city papers
editorial criticisms and comments upon a case
pending in the district court Of Comal county,
which, in my judgment, originate III a misap-
prehension OF the facts and the law, ] have
concluded to present the facts rs briefly as
possible. While | was sitting In Uvalde
county as special district Judge, petition
from a citizen of New Braunfels, whose name
has been forgotten, praying Tor the writ or
Injunction, was presented TO me The petit
ton was clear and positive In its statement OF
facts and was verified by the oath of the COM
plant. II alleged that the petitioner owned
and resided upon n parcel OF land In the town
Of New Braunfels and had so owned and re-
sided upon the same for many years that
his supply of drinking water for himself and
family was derived from wells-that the land
owned by the Catholic church and upon
ated, adjoined the land of the petitioner, and
being more elevated than the land
Of petitioner the drainage and seep-
age, theretrom naturally flowed into
the lot of plaintiff He alleged that the Catho.
lie church and the lot upon which 1t was situ-
ated had formerly been included within the
corporate limits of New Braunfels, and that
upon two occasions, the church had attempted
TO establish a cemetery at or near TO said
church, but had been forbidden to do so by
the municipal authorities OF New Braunfels
upon the ground, that such cemetery would
endanger the health OF the city. He alleged
further, that after these two failures to estab-
fish cemetery Mt or near the church, the cor
porate limits of New Braunfels had been so
contracted aud changed as to place the ground
on which 1t was proposed to open cemetery
outside of the city limits and beyond the con-
troll Of the municipal authorities. He also al
legged that the church was about to carry out
and execute its purpose of establishing ceme-
terry on its lof, and that in case IL should do So
the drainage and seepage from such cemetery
would render plaintiffs well water unwhOle-
some and impure and materially diminish the
value and healthfulness of his lot.
These allegations were verified by oath and
made out prima facl case for the purpose OF
obtaining an injunction.
IL viii not be disputed that church. which
Is a corporation, or artificial person, may be
restrained by the writ of Injunction, when IL
is about to so use its rights as to intict injury
upon one or more citizens. The churches are
as amenable to the laws of the state as are
natural persons or private citizens.
The establishing of cemetery, or grave
yard, within the corporate limits of town or
city, would constitute nuisance, per Sc, and
would 0e prohibited by the municipal author
tiles, acting as the guardians of the public
health, and were, If necessary, they could OBJ
tain the and OF the writ OF injunction.
Ii is an ariOm OF the law that one j
must so use his own property as not to
damage the property OF his Reighbor. This
axiom Is favOrite with courts OF equity,
which enforce the principles OF Justice by the
prevention or wrongs.
The equity powers of the district courts OF
by the statute law, are as large and compre-
hensive as are the powers of the English court
of equity.
The erection OF LANYARD, slaughter.house.
or the opening of q cemetery, or graveyard, SO
near to the residence OF another rs to be often
siye, or dangerous to health, would constitute
a nuisance that might be restrained by the
writ of injunction. The church. like any other
corporation, may commit q nuisance, and IL
about to do so, may be restrained by injunc-
ton. In this case, the injunction was tenn
N I'm .aatf
in statu quo until the case could be tried on
Its merits. IL may be case OF new impress
sion in Texas to restrain church from estab-
fishing and using graveyard at q particular
place, but the principle is well settled.
Conceding Tor the sake OF argument, that
the church editice was erected before the
plaintiff acquired his lot, that circumstance
should not cut any figure in this case, for
several reasons, to wit: That the church has
no right by prescription, or statute, to locate
cemeteries Independently OF the civil authori-
ty, and that IL Is no hardship, or priyation, to
forbid the cemetry to be attached to the
church edi1ce; where to 90 so would injure
the property and health OF y contiguous land
owner. Tho church editice is intended for the
purposes of worship and devotion, and those
purposes are neither crippled nor frustrated
by the failure to have a cemetery located at
such church edihce. Moreover, the right to
locate cemeteries falls within the puryiew of
the police or regulative power of the civil |
authority, and cannot be exercised arbitrarily |
even by the civil authority In its capacity OF |
guardian of the public health. The right TO |
locate cemeteries is neither an Inherent nor |
derivative right of any denomination or |
body, nor is il essential to the |
carrying out OF the objects of religion that |
they should exercise such right. Nor does |
any denomination acquire such Il right by |
in the United States.
In the case pending at New Braunfels the
erection OF the church edi1ce did not confer /
upon 1t the right to locate u cemetery in close |
to such church ediflce nor is the ex-
ercise of such right incident to the organiza-
ton of the church, or essential to the pur-
poses of worship and devotion. The fact that |
the cemetery 10 only about TO be located rem
fers the doctrl me of prescription entirely in
applicable to the case, and frees IL from COM |
pcation not properly growing out OF the
facts. The case hinges on the truth of the ma
ferial allegations contained in plaintiffs Pc
LitiOn, and il this be clearly established by the
evidence, 1t would be palpable violation OF |
the axiom, that one must so use his property |
Is not to inJure the property of another. TO |
suffer the cemetery 10 be located in immed ate |
proximity to the church in New Braunfels
The question involved is not an ecclesiastical
and UNCONVENTIONAL one, but a principle of |
equity and public policy OF far.reachnR con-
to the citizens of the state
ANTHONY w. BILLIARD.