The Laurens advertiser. (Laurens, S.C.) 1885-1973, 1912-03-27
NO TREsPAssING SAYS COURT
decision as to Cemetery From DarI-
hgton County Trial Was Or.

'"e ueau Should be interfcrcd with
ana the place set apart for thi; mr.
pose converted into arabic land
plowed over and cultivated and winod
out and oblterated as a cemetery +"
rms statement is contained in a de-
clsion by Associate Justice Watts and
concurred in by all justices of the SUI
preme court in reversing the nar-
lington sounty court in the case of
ELIAS Kelly and b. j. Kelly against
John Timer The plaintiffs are seek
ing an injunction to keep Timer from
trespassing on a cemetery. Judge
Shipp sustained a demurrer to tne
complaint. The supreme court in its
decision reverses Judge ShiDp's rul-
ing.
Opinion.
The opinion in the case is rs fol-
lows:
This is suit tor permanent in
junction. His honor Judge Shipr,
sustained the demurrer to the com
plant interposed by the defendants,
ana Tor proper understanding of the
case it will be necessary that the
complaint, demurrer and order OF
Judge Shipp and the exceptions be re-
ported with the case He allowed an
amendment to the complaint on mo-
ton of plaintiffs. The exceptions all
lege error in his decision. He based
his order sustaining the demurrer on
the ground the Complaint did not
state facts sufficient to constitute
cause OF action because it appears
upon the face of the complaint that
there Is no allegation of peculiar and
special damages sustained by the
plaintiffs which would entitle them to
njunctivc relief Did the complaint
state a cause of action before the
amendment or afterwards? We think
so The plaintiffs allege that they are
grandsons and heirs at law of Jacob
Kelly, and they allege that Jacob
Kelly. during his life time set apart
and dedicated for the use of the pub
lie two acres of land as graveyard
for the burial of the dead, and that
it has been used as such for so or 80
years, and during all that time known
as the Kelly cemetery and during
that time parties having dead buried
there have kept up the graves by
cleaning OFF the same and by fencing
the same. That the right to use this
property as graveyard has never
been questioned for over 30 years.
That the plaintiffs parents, grand
parents, great grandparents and other
kindred are buried there and each of
the plaintiffs have children buried
there. and expect to be buried There
themselves, and their descendants X
pect to be buried there. That the
defendant is trcspassing upon and de-
stroying the wire, shrubbcry trees,
etc, and making it unfit for the pur-
pose it was set apart and used for,
and intends to continue his deprada-
uons until the graveyard is made
cotton patch. We think the plaintiffs
allcge sulliciency peculiar and special
damages to entitle them to injunction.
They allcgc that they have kindred
buried thero, children, parents and
other ancestors. The allegations show
they are interested in the graveyard
as a whole and particularly in the
plat where their dead lie.
IL do not know of anything that
would disturb and arouse the feelings
of a properly constituted person more
than the intentioal treSpass and vio-
lation of the graves of their dead 1t
shocks and outrages the feelings, and
arouscs the Indignation of every right
minded person in a Christian country
that the resting place of the dead
should be ntcrfered with and the
place set apart for this purpose con
Verted into arabic land, plowed over
and cultivated and wiped out and OBJ
liberated as cemetery. | not only
think when graveyard is set apart
for the use of the public that those
who have kindred buried there can
maintain suit for any unlawful in
references and treSpass, but | Ihink
any one who has friend buricl there
can intcrfcr and allegc DcCuliar ard
special damages. These plaintiGs com
plain on behalf of themselves and on
the behalf of the public i'm general.
who have dead buried there Where
it is Impractical to bring all the parties
before the court, by reason of num-
bcrs, one or more can complain on
behalf Of themselves and such others
as may come in. Judge Shipp based
his decision on the principles laid
down in Steamboat Co. VS.. Railroad
Co, 46 S. c., page 327; Thrcatt VS..
Mining Co, 80 S. c.. page l3l; Bait
Zegcr VS.. Railroad Co., "a ). c., PAGE
PAP, and other caes affirming that
principle. An examination of these
authorities will show that where the
public generally sustains injury, that
the party complaining must show
some special or peculiar damage TO
himself.
"In the case at bar the paintiffs
show this. They complain that their
dead buried in graveyard, set apart
for that purpose for over so years,
are being disturbed and their rights
invaded by an unlawful attempt on
the part of the defendent to take pos
session of the land occupied by their
dead, and to tear down and eradicate
all evidence of their resting place.
and to plant the lands in crops Not
only to disturb their dead, but the