Omaha daily bee., 1896-03-29
CANNOT PUT GRAVES THERE
Strip South of Prospect Hill Cemeter,
Must Not Be Added.
JUDGE PoWElus DECISION IN THE CASE
Finds hat the Use Of the GrOun for
Burial would Mem
nee the Health of the
Community.

Judge Powell yesterday handed down a
decision in the Prospect Hill cemetery case,
allowing an injunction restraining the use
Of the strip adjoining the cemetery on the
south for burial purposes.
This case had been stubbornly contested
in the courts, the fight commencing in the
city council over the passage of an ordinance
which, 1t is claimed, would allow the use
of the strip Of ground in controversy to be
used as a part of the cemetery proper. The
contest was then transferred to the district
court, and 1t has been admitted all along
by both sides that the case would be taken
to the supreme court, no matter which side
won in the lower court.
The title of the case is Jesse Lowe and others
against the Prospect Hill Cemetery associa-
ton. In summing up the evidence and
giving his opinion in the case Judge Powell
read from manuscript, his statement being
substantially as follows:
This is a case brought to restrain the
defendant from using a strip of ground 127
feet deep on Parker street. for the reason
that such action is in violation of the or
dipances Of the city and for the reason
that the plaintiffs sustain particular and
special damages by reason of the contamina-
tion of wells by disease germs which might
be carried from the bodies of persons hay
ing died of contagious or infectious dis
eases, by percolation Of water through the
soil"
I'm 1863 the cemetery proper was dedi-
Gated. In 1875 a strip was added on the
south and lots sold. This strip was known as
the first addition to Prospect Hill. Still
later, and subsequent to 1892, the strip be-
tween the cemetery and the north line of
Parker street being the land now in contro-
versy, was attempted to be used for Gene
terry purposes.
A of this ground and considerable ada
cent property which has since been used for
residence purposes was included in the ter
ritory formerly owned and controlled by the
Cedar Hill Cemetery association, which was
incorporated by act of the territorial legisla-
ture in 1858.
1.-The evidence shows that in 1883 Byron
Reed, having acquired title to Cedar HILL, ar
ranged with all persons having burial lots
in the disputed strip to remove their dead
to the cemetery on the north, Reed giving in
exchange for their lots, lots in Prospect Hill
and paying the expense of removal. He then
ordered that no burials be made in the strip
and no lots sold there for burial purposes.
"After this strip had been unused and I'M
occupied as a cemetery for eight years, the
city council passed an ordinance prohibiting
the enlargement of cemeteries within the
city limits.
"It Is claimed by the plaintiffs that the
acts OF Reed and others having rights in the
strip constituted an abandonment, and that
the subsequent laying out of this strip for
burial purposes was a violation Of the city
ordinance.
"The defendants claim that no part of the
cemetery had been abandoned and that nc
part OF a cemetery 'can be abandoned without
the consent Of every person holding the right
OF sepulcher in any and every part of the
cemetery, and that plaintiffs have not such
interest in this suit as Will enable them Ia
maintain a suit and that they cannot show
special damages such as will entitle them
to al Injunction as asked. 1t is claimed
also, that the defect alleged to have been I'm
the ordinance has been cured by the repeal
of the ordinance and the enactment of an.
other ordinance in September, 1895, which,
In effect, allows this particular cemetery to
be enlarged in the manner In which 1t has
been done.
II am satisfied, after & careful considera-
tion of the matter. that the plaintiffs have
such an interest as will enable them to main
tain this action, provided they show they are,
or are likely to be. specially damaged. and
that the acts Of Byron Reed and of those
having burials In the old Cedar Hill ceme-
terry and the failure. for more than eight
vars. of any one having the right of sepulcher
in the disputed strip to take advantage OF
that right. constituted a legal abandonment
OF the strip.
''The testimony shows that the soil in the
cemetery and for a great distance around 1t is
OF the kind known, geologically. as loess, and
IL remarkable for its power to absorb and re-
tain moisture. The logical deduction, from
the decided weight OF the evidence of the
drainage and meteorological experts, Is that
germs Of disease are very likely to be car
ried through soil Of this character by perco-
leting water from the bodies Of those who
may de OF contagious or infectious diseases
and BE- buried therein. to wells 200, 800, 400
feet or more away, and in such numbers as
to endanger the health and lives Of those
using the water.
'The strip might have been laid out and
used for cemetery purposes prior to the
passage of the ordnance in 1899. but 1t
could not have been done rightfully after
the passage of either ordinance referred to
and ths defendant cannot claim In a court
OF equity that its position under the last
ordinance is bettered by reason Of its viola
tion OF the first ordinance"
Sustained the Jury's Verdict.
Judge Slabaugh has oyerruled the
motion fer a new trial in the case of Miss
Salome Emminger against the Omaha Street
Railway company. In overriding the motion
the court said that the evidence regarding
the extent of the injury. In which afidayits
had been introduced purporting to show that
the plaintin had attended dances and had
danced, was simply cumulative and was not
new evidence. The hame was true with
reference to the other affidavits regarding the
position Of the plaintiff Immediately after
the accident.
Regarding the point that the amount OF
damages was excessive, the court held that
was a point for the jury to determine and
was not a legal question.
olsen Must Set Out the Article.
Judge Scott yesterday sustained a mo-
tion In behalf OF the defendant in the case OF
Theodore Olsen against The Bee Publishing
company, asking that the plaintiff be re-
quired to set out more fully the article In
~-Afa tho alIanAd Iihal Ia said IN ha va an