Evening journal., 1916-08-05
Decision Stops Transfer of Cemetery NetU Library Sit


iations between cemetery companies
or religious societies owning burying
grounds. and persons holding burial
lots therein, which IL applied 10 this
case would be palpably inaccurate an6
unsounS." the court says. 1T has been
said that such lot holders possess only
a mere license or privilege 10 use and
maintain their lots during the continu-
ance OF the cemetery OF burial ground
as such
But such a doctrine is wholly in
applicable to the relations between
the corporation defendant and the
holders OF lots in its cemetery. They
have much more than a mere license
or privilege 70 use the lots appro-
priated or assigned TO them We're II
otherwise their right 20 continue In
the possession Of burial lots would be
revocable and determinable az any
time at the whim or pleasure OF the
corporation defendant"
In conclusion Judge Bradford says;
ION the whole I am satisfied that
the showing made by the complain
ant Is such as 20 Justify and require
the awarding Of preliminary injunc-
ton 10 maintain the status quo until
plenary pleadinEs and proofs. An in
teriocutory decree for the complain
ants in accordance with this opinion
may be prepared and submitted"
Judge Bradford's Opinion.
Judge Bradford's opinion in part
is as follows;
This is an application by Emily
Cleland Townsend Chew and others,
citizens of states other than Della
ware suing on behalf Of themselves
and others. for a preliminary injunc-
ton to restrain. until the further
order Of the court, the First Presby-
terian Church OF Wilmington, Della
ware Incorporated. corporation OF
Delaware, from entering or I'm any
way trespassing upon the burial lot
or vault wherein the bodies OF the
relatives OF the complainants are bur-
led in the cemetery OF the corpora
ton defendant between Ninth. Tenth.
Market and King streets In Whining
ton, for the purpose OF removing or
In any wise disturbing the bodies or
the remains Of the relatives OF the
complainant now buried in that lot
or vault. and from removing the mon
ument thereon erected. the coffin and
vault therein placed and built the
tombstone coping, fences and chains
on or surrounding the same. and
from mutilating. cutting, destroying
or removing the trees, shrubbery.
flowers and earth in and upon the
came. and also from removing or dis
turbing all or any Of the other bodies
buried in the said cemetery and from
removing or disturbing all or any
b Of the other cofiins, vaults. tomb
3 stones monuments, copings. fences.
trees, shrubbery. in and upon the
said cemetery. and also from con-
veying to the defendant Arthur L.
Bailey. OF Wilmington, Delaware. or
TO any person or persons whomso-
ever the whole or any part Of that
rectangular portion OF the land OF
the corporation defendant having q
front Of ninety feet on Market stree
and a front Of ninety feet on KIM
street and extending along the south
erly side OF Tenth street from tn
easterly side Of Market street 20 IN
westerly side OF King street, with IN
right. privilege and easement Of IN
free passage OF air and light over an
upon certain other rectangular por
ton OF the said land adjoining tn
lot above described and having
front OF fifteen feet on Market stree
and a front OF fifteen feet on KIM
street. II appears from the bill. am
davits and exhibits on which the ap
plication for a preliminary injunction
is based that the corporation defend
ant intends, in consideration OF thu
sum Of $225,000. to sell and conve!
TO Bailey, in fee and clear of incum
kNu fI.I A.
scrihed rectangular lot running from
Market 10 King streets with a front
age OF ninety feet on each street, an,
TO grant 10 him an easement for tn
passage OF light and air in the abov
described strip Of land having
frontage OF fifteen feet on eacl
street; the same to be used for tn
erection and maintenance OF pub
lie library. Pursuant TO this inten
ton the corporation defendant pric
to the filing Of the bill commence,
and thereafter and until the award
ing Of a restraining order. continue,
TO remove tombstones, trees an
shrubbery. and otherwise 20 dismant
the cemetery.
judicial Discretion.
The granting or Withholding OF
y
perpetual or permanent. injunctiC
calls for the exercise OF sound jud
cial discretion, regulated and col
trolled by certain principles pecuna
ly applicable to temporary injun
tive relief. and so firmly establish,
as 10 render unnecessary any discu
sion Of the particular decisions
which they rest. Regard should
had TO the nature OF the controvers
sought. and the comparative hardsh
or convenience TO the respective pa
ties involved in the awarding
denial OF the injunction. The ult
mate object Of a preliminary injun
ton. preventive in it's nature. is q
preservation of the o.,erty or righ
in controversy until the decision
the case on a fun and final hearil
upon the merits. or a dismissal OF u
bin for want of jurisdiction or 9th
sufficient cause.
The Injunction is merely provision
al. II does not. in a legal sense. fina
~ conclude the rights OF partis
whatever may be its practical oper
tion under exceptional circumstance
In a doubtful case where the gran
ing Of the injunction would, on d
assumption that the defendant uli
mately will prevail. cause greater de
riment TO him than would, on co
rary assumption. be suffered by L
complainant through its refusal I
injunction usually should be denit