Opinion
17440.
ARGUED APRIL 10, 1951.
DECIDED MAY 22, 1951. REHEARING DENIED JUNE 13, 1951.
Injunction, etc. Before Judge Andrews. Fulton Superior Court. January 16, 1951.
John L. Westmoreland, John L. Westmoreland Jr., and J. Ralph McClelland Jr., for plaintiff in error.
McLennan Cook, contra.
The decree in this case was not authorized under the terms of the contract between the parties, and it was error to grant an injunction.
No. 17440. ARGUED APRIL 10, 1951 — DECIDED MAY 22, 1951 — REHEARING DENIED JUNE 13, 1951.
Mrs. Robert Alston and Mrs. Marion Harper brought a petition, in behalf of themselves and others similarly situated, against West View Corporation, which operated the West View Cemetery. Mrs. Alston and Mrs. Harper had brought lots in the cemetery and used them for burial purposes. They alleged that the corporation, by its manner of conducting the cemetery, was violating the terms of their deeds to the burial lots; and that a controversy as to the respective rights of the operator of the cemetery and the purchasers of lots therein existed, which emanated from a difference in the construction of the conditions made a part of the deeds to the lots. The petitioners alleged certain acts and omissions on the part of the corporation, which they asserted would be continued, each of which was contrary to the obligations and conditions of their deeds. They sought a declaratory judgment defining the rights and obligations of the parties, and an injunction to prevent specified acts on the part of the corporation pending the determination of the questions in dispute.
The corporation answered, and in substance set up that such acts on their part as were admitted were done and authorized under the terms and conditions of the deeds they executed to the owners of the lots.
The deeds to the burial lots were ordinary warranty deeds conveying a fee-simple title, but subject to nineteen conditions relating to the use of said lots, which are made part thereof. The conditions here in question are:
4. "The proprietor of each lot shall have the right, subject to the approval of the Superintendent, to cultivate shrubs and plants in the same; but no tree growing within the lot or border shall be cut down or destroyed without the consent of the Directors."
5. "If any trees or shrubs situated in any lot shall by their roots or branches become detrimental to adjacent lots or avenues, or unsightly or inconvenient to passengers, it shall be the duty of the Directors, or their agents, and they shall have the right, to enter the said lot and remove the said trees and shrubs, or such parts thereof as they shall determine to be detrimental, unsightly or inconvenient."
7. "If any monument, effigy or any structure whatever or any inscription be placed in or upon any lot which shall be determined by the Directors to be offensive or improper, or injurious to the appearance of surrounding lots or grounds, they shall have the right, and it shall be their duty, to enter upon such lot and remove the said offensive or improper object."
10. "Headstones for graves, or any structure used to mark a grave, must not exceed 6 inches in height above the surface of the ground, and they must not be less than 6 inches nor more than 15 inches thick, and must not exceed 30 inches in width. No steps to lots will be permitted. Stone slabs will not be permitted, either erect or reclining. All stone and marble work, monuments and headstones, must be accepted by the Superintendent as being in conformity with the foregoing rules before being taken into the Cemetery. Lot owners may have planting or other work done on their lots at their expense, upon application to the Superintendent. No workmen, other than employees of the Cemetery, will be admitted into the Cemetery, except for the purpose of setting stonework. No iron or wirework, and no seats or vases will be allowed upon lots, except by permission of the Directors; and when any article made of iron begins to rust, the same shall be removed from the Cemetery. No artificial stone will be permitted in the Cemetery. So-called rock face work will not be permitted on the exposed surfaces of any monument, vault structure, stone or marble vase or seat, nor shall it be used for grave markers, or the base of any of the foregoing, except upon the approval of the Secretary."
18. "The grantee herein has contributed his proportionate part to a trust fund deposited in trust with a Trustee, the income from which is to be used for the maintenance and care of the lots in West View Cemetery, including the lot herein described, and shall not hereafter be chargeable with the cost of any such maintenance and care of said lot."
By agreement all questions of fact and law were submitted to the trial judge. After hearing evidence, the trial judge made certain specified findings of fact, and based thereon issued a decree setting forth the rights of the parties, and enjoined the corporation from doing any act contrary to the terms of the decree.
The corporation filed a motion to correct, amend, modify, vacate and set aside the court's findings of fact and decree on various grounds. After a hearing thereon the court amended the decree. The decree as amended was as follows:
"1. That the plaintiffs have the right and privilege, upon application to the Superintendent of said Cemetery, to plant and cultivate shrubbery and plants, at their own expense, upon their respective lots, provided the branches and roots do not enter onto or overhang the lot of another, or obstruct passage-ways and, provided further, that the same is not unsightly and does not otherwise work an injury to another lot owner or the defendant. The court further decrees that the plaintiffs have the right to have said shrubs and plants cultivated and planted by competent and skilful workmen of their own selection upon application to the Superintendent of said Cemetery in the event the defendant arbitrarily refuses to furnish its employees at reasonable rates for the performance of said service.
"2. It is further declared and decreed that if any tree or shrubbery situated in any lot which, by their roots or branches become detrimental to adjacent lots or avenues, or unsightly, or inconvenient to passengers, then in that event the defendant has the right and duty to remove such tree or shrubbery, or any part of the same. However, the Court declares and decrees that the defendant has no right, power or authority to remove any plant, flower or shrubbery from the plaintiffs' lots except as above decreed in this paragraph.
"3. It is further declared and decreed by the Court that defendant is under the obligation and duty of now maintaining the approximate number of water faucets in the approximate locations as existed at the time the plaintiffs purchased their lots, and that the defendant is under the further duty and obligation of permitting the plaintiffs to secure the necessary water from the defendant's faucets to water the flowers, shrubbery and plants located on plaintiffs' lots, provided the plaintiffs pay to the defendant the reasonable value of the water thus secured and used.
"4. It is further declared and decreed by the Court that the defendant does not have the right to require that all grave markers which may be placed by the plaintiffs on their lots in the future shall be installed flush with the ground. The plaintiffs have the right to install footstones and headstones in the future to mark the graves on their lots so long as the same do not exceed 6 inches in height above the surface of the ground and so long as they are not less than 6 inches nor more than 15 inches thick, and not more than 30 inches in width. The number of markers shall not exceed the limit provided for in the rules and regulations annexed to the plaintiffs' deeds.
"5. It is further declared and decreed by the court that the dances thus conducted by the defendant offends the sensibilities of a normal person and even a dullard and violates the properties of a Cemetery and the defendant is hereby permanently enjoined from conducting, allowing or permitting such dances in said Administration Building, or at any other place on said Cemetery grounds. The trophy room being enclosed and not being visible to the public does not violate the properties of said Cemetery and the court declares that plaintiffs have no right to prevent the maintenance of same in its present condition.
"6. It is further declared and decreed by the court that the defendant is under the duty and obligation of cutting the grass when needed on the plaintiffs' lots, planting grass on plaintiffs' lots where none is growing and is needed, filling in holes on plaintiffs' lots, maintaining, repairing and keeping up walkways and drive-ways, all of these things to be done in the same manner and to the same extent as was being done by the defendant at the time of the purchase of said lots by the plaintiffs; that the expense of said care and maintenance to be paid for from the income derived from said trust fund. In the event that the income derived from said trust fund is insufficient to cover the expense of said maintenance and care the defendant is under the duty and obligation to contribute to the said trust fund a sum, the income from which will be sufficient to cover the costs of said care. It is further decreed by the Court that the defendant has no right to use any part of the income from said trust fund for any purpose other than for the maintenance and care of the lots in West View Cemetery, including the lots of the plaintiffs.
"The defendant is hereby permanently enjoined from removing [from?] the lots of the plaintiffs, or either of them, any shrubbery, plants or flowers except under such circumstances and conditions as defendant would be justified in so doing under the terms of this decree."
"It is further declared and decreed by the Court that the defendant has the right to make reasonable rules and regulations for the management and control of said cemetery and for the government of the grounds to promote the general objects of said cemetery, provided said rules and regulations do not violate any rights or privileges of the plaintiffs which are granted to them in their respective deeds and the rules and regulations annexed thereto.
"It is further declared and decreed that the defendant has no right to make any rule or regulation which would violate, contravene or deprive the plaintiffs, or either of them, of any right which they have under their deeds, the rules and regulations annexed thereto, or the law."
Exceptions pendente lite were taken to this order, asserting error in denying various grounds of the motion. A motion for new trial was filed, amended, and overruled. Error is assigned on the exceptions pendente lite and on the order overruling the amended motion.
For the sake of brevity we have omitted from this statement the various allegations of fact in the petition, the many contentions in the corporation's answer, the specified findings of fact and law in the judgment of the court, and the numerous specifications in the corporation's motion to amend and set aside this judgment. So much of the foregoing as is essential to a determination of the questions involved will be set forth in the opinion.
The rulings here made are confined to the issues now existing between the parties to this proceeding. These parties as well as those holding similar deeds may from time to time have other controversies on facts and law, but until such contingency actually arises, no anticipatory decision will be made. Wright v. Heffernan, 205 Ga. 75 ( 52 S.E.2d 289); Darnell v. Tate, 206 Ga. 576 ( 58 S.E.2d 160).
When parties have reduced their contracts to writing, ordinarily the rights and duties of the parties must be found in the written instrument. This rule of law is so well settled that citation of authority is unnecessary. It would serve no useful purpose to here set forth the contents of the lengthy record in this case. Suffice it to say, there is nothing in the record to remove this case from the general rule of law above stated.
The first paragraph of the decree would seem to give to the defendants in error the perpetual right to plant and cultivate shrubbery on their lots. The deed is not subject to this construction. The right to do so is stated in the deed, but the further condition appears therein that the plaintiff in error "shall have the right to enter the said lot and remove the said trees and shrubs or such parts thereof as they shall determine to be detrimental, unsightly or inconvenient." And the deed expressly provides, "no workmen other than employees of the cemetery shall be admitted into the cemetery except for the purpose of setting stonework." For the reasons above stated, paragraph two of the decree was not authorized.
The third paragraph of the decree attempts to add a completely new condition to the deed. The words "water faucets" nowhere appear in the contract between the parties, the deed, and the court was simply not authorized to write into the deed an entirely new condition.
The fourth paragraph of the decree violates the terms of the deed. The deed provides that grave markers "must not exceed six inches in height above the surface of the ground." This language provides a maximum height, but no minimum is provided. If the management of the cemetery determines in good faith that the appearance of the cemetery will be improved by lowering all grave markers flush with the ground, they have that right.
The dances referred to in paragraph five of the decree were not public dances. The plaintiff in error disclaims any intention or desire to hold public dances on the cemetery property. It appears that on two occasions when employees of the cemetery held a banquet in the administration building located on the cemetery property, and on one occasion when florists of the City of Atlanta held a banquet at the same place, at the conclusion of the banquet there was some dancing by some of the guests. This occurred in a room in the administration building that had no windows and could not have been seen from the outside. We see no reason for an injunction against occurrences of this kind.
Paragraph six of the decree requires the plaintiff in error to maintain the cemetery in the exact condition as when the lots of the defendants in error were purchased, and further requires that, if the income from the trust fund provided under the terms of the deed is not sufficient to do so, the plaintiff in error shall "contribute to said trust fund a sum, the income from which will be sufficient to cover the cost of said care." This requirement simply adds a provision to the contract between the parties, and this the courts are not authorized to do.
It is insisted that "perpetual maintenance" means that the plaintiff in error is under the duty to maintain the cemetery as insisted upon the defendants in error, regardless of the cost. With this we can not agree. In the deed and in all the advertising matter introduced in evidence, when the language "perpetual maintenance" was used, it was expressly pointed out that this maintenance should be from the trust fund provided for under the terms of the contract between the parties.
The general effect of the decree in this case is to place upon the plaintiff in error a much larger obligation than the contract between the parties provides for, and very largely to strip the management of the cemetery of any discretion in its management and operation. Courts, of course, can not place upon either party to a contract greater obligations than the contract itself does. In the very nature of things, the management of a cemetery must be allowed some discretion in its operation, and so long as this discretion is exercised in good faith, and does not violate any of the terms of the contract between the parties, courts have no right or authority to interfere. It follows from what has been said above, the decree in this case was error, and the injunction should not have been granted.
Judgment reversed. All the Justices concur, except Atkinson, P.J., and Head, J., who dissent.
While I concur in the ruling that the company is not obligated to set aside an additional trust fund, I dissent from other rulings as follows:
As to the first paragraph of the decree, the right to plant and cultivate flowers and shrubbery on their lots is granted under condition 10 of the deed. The evidence shows that lot owners did so years ago with approval of the superintendent; and there being no evidence to show that such were now "detrimental, unsightly, or inconvenient," this paragraph of the decree was fully authorized.
I think that the third paragraph of the decree was authorized. The company had for many years permitted and encouraged owners of lots to beautify them with flowers and other plants. They had operated a horticultural department, and to encourage owners to beautify their lots sold flowers and shrubs and planted them upon these lots. To induce owners to purchase them, water faucets had been installed within 100 feet of each lot for their care and preservation. This was the standard of maintenance set by the company and existing when owners bought lots. There was evidence to show that when this dispute arose, in order to require the lot owners to accede to their plan of leveling off all lots and removing all objects except grass, the company, in order to prevent the growing of flowers and other plants, arbitrarily removed these faucets. Nor was this portion of the decree a mandatory injunction. Manry v. First National Bank of Barnesville, 195 Ga. 163, 166 (8) ( 23 S.E.2d 662); Westbrook v. Comer, 197 Ga. 433 (6) ( 29 S.E.2d 574).
The fourth paragraph of the decree was authorized by condition 10 of the deed, which provided: "Headstones . . must not exceed six inches in height above the surface of the ground." This could mean nothing except that a headstone six inches in height was permitted under the terms of the deed. Lot owners having placed headstones not more than six inches above the ground have complied with the terms of their deeds, and the company has no right or authority to now remove or alter them to ground level.
As to the fifth paragraph of the decree, there was evidence that dances were permitted in the administration building which was on the cemetery premises. There is no specific provision in the deed prohibiting dances within the confines of the cemetery. But considering the purpose and terms of the deed along with the fact that the grantor is the operator of a public cemetery and each lot is one of many forming a single unit under one general management, it seems clear that the operator has an obligation to owners of lots therein to refrain from having or permitting such frivolity as dancing with its accompanying music. The agreement for maintenance, when considered in connection with the purposes and uses of the lots conveyed, covers more than the mere physical or material objects. Maintenance of a proper decorum and dignity within the cemetery is just as much their obligation as the maintenance of the driveways or the surface-water control. Cemeteries are hallowed and sacred ground and people have an inherent respect for the dead. Were this not true, there would be no cemeteries, nor cemetery companies. I think that the trial judge properly enjoined the company from conducting, allowing, or permitting dances in the administration building.
As to the sixth paragraph of the decree, as already stated in the first paragraph of this dissent, I do not think that the company can be required to set aside an additional trust fund sufficient to create an income to care for any increased cost of maintaining the cemetery. However, under condition 18 of the deed, it is their duty and not the duty of the lot owners, to maintain them. It is there stated that the purchaser of the lots "shall not hereafter be chargeable with the cost of any such maintenance and care of said lots." I can not agree with the view taken in the majority opinion, that the company's liability for maintenance is limited to the income received from the trust fund. While this condition of the deed states that they have a trust fund, there is nothing therein that limits their liability for maintenance to the income from this fund, but on the contrary it specifically provides that the purchaser would not be chargeable with any cost of maintenance. Accordingly, it is the duty of the company to maintain the lots at its own expense if the income from the trust fund is insufficient so to do.
From what is said above, I do not think that the case should be reversed, but it should be affirmed with direction that the portion of the decree requiring the creation of a trust fund be stricken. Mr. Justice Head concurs in this dissent.