Opinion
Decided November 28, 1871
S. Clinton, for appellant.
B.H. Williams, for respondent.
In this case the appellant claims, that if it be held that the respondent had the right to assess the property of the appellant, yet it had not complied with the law in doing it. But one objection is urged, and it is stated upon the points of the appellant's counsel thus: "The assessment should have been upon the lands of the respective owners, by their known boundaries. The city had no right to assess the whole block to the cemetery, who only owned a portion of it." As far as we can gather from the printed papers before us (from which are lacking certain plats or maps referred to in the complaint, and in the findings of the court), the owners, other than the appellant here indicated, are the persons to whom respectively, subdivisions of the whole tract of the appellant's land have been by it conveyed, to be held and used by them for burial purposes. The effect of such conveyance, under the statute from which the plaintiff derives its powers, is we suppose (for no copy of any conveyance is laid before us), no more than to confer upon the holder of a lot a right to use for the purpose of interments. No such estate is granted as makes him an owner in such sense as to exclude the general proprietorship of the association. The association remains the owner in general, and holds that relation to the public and to the government, while subject to this, the individual has a right exclusive of any other person to bury upon the subdivided plat assigned to him. He holds a position analogous to that of a pew holder in a house for public worship. It is a right exclusive of any other of the congregation, but subject to the right of the religious corporation, which represents the ownership of the property to the public, and is the legal owner of the fee of the property. This being so, we see no error made by the respondent in assessing the expense of the sidewalk to the whole property, and to the appellant as owner, by one description including the whole.
The other question involved is passed upon in the other case.
The judgment affected should be affirmed, with costs to the respondent.
All concur, except RAPALLO, not voting.
Judgment affirmed.