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Mayor & Council of Wilmington v. Cathedral Cemetery Co. of Wilmington

Superior Court of Delaware, New Castle County

June 22, 1954

MAYOR AND COUNCIL OF WILMINGTON
v.
CATHEDRAL CEMETERY COMPANY OF WILMINGTON.

Action by city for judgment determining the validity of sewer and paving assessments against land owned by cemetery corporation. The Superior Court, New Castle County, Herrmann, J., held that a cemetery, which was practically filled with graves, was exempt from special assessment for local improvements.

Judgment accordingly.

[48 Del. 481] Action for declaratory judgment upon complaint, answer and stipulations of facts.

William F. Lynch, II, Asst. City Sol., Wilmington, for plaintiff.

Stewart Lynch and Alfred R. Fraczkowski, Wilmington, for defendant.

HERRMANN, Judge.

The plaintiff seeks determination of the validity of sewer and paving assessment liens upon land owned by the defendant at 12th and Madison Streets in Wilmington. The sewer assessment was made in 1900 and the paving assessment was made in 1922. Prior to the commencement of this action, no attempt has ever been made to enforce the assessments.

In 1852, a portion of the land here involved was conveyed to the Roman Catholic Bishop of Philadelphia in trust ‘ for the use of the Roman Catholics of the Parish of Wilmington in the State of Delaware as and for a cemetery or place for burying their dead.’ The remaining portion of the land was conveyed to the Roman Catholic Bishop of Wilmington in 1870. During the years, title to the combined properties was conveyed from Bishop to Bishop until title was vested in the defendant corporation in 1953.

From 1852 on, all of the land here involved was used exclusively as a cemetery on a non-profit basis. It appears that, generally speaking, the cemetery was divided into family lots. By 1880 all of the lots in the cemetery had one or more bodies buried therein although all of the grave sites in each lot were not fully utilized. The defendant corporation was created in 1881 for the purpose of acquiring and operating additional cemetery grounds to supplement the inadequate space then remaining [48 Del. 482] at 12th and Madison Streets for the burial of the dead of the Roman Catholic Faith. After the organization of the defendant corporation in 1881, burials in the cemetery here involved were restricted to members of families holding lots therein. There have been no burials in the cemetery since 1900 except in eleven instances, five of which were subsequent to 1915.

Page 707

In 1953, legislation was enacted to permit the defendant to remove all bodies interred in the cemetery here involved. See 49 Del.Laws, Ch. 33. It appears that this development precipitated this action to enforce the assessment liens which have appeared of record against the property since the assessments were made.

Three governing factors emerge from the stipulated facts and pertinent statutes:

1. At the time of the assessments in 1900 and 1922, the cemetery was filled with graves to such extent as to make it impossible to use any portion of the land for any purpose except sepulcher without violating the then-existing graves or destroying the surrounding cemetery grounds.

2. The sole means of enforcing the assessments was by public sale of the land assessed. See 19 Del.Laws, Ch. 209; 29 Del.Laws, Ch. 122.

3. A sale of the land to enforce the assessments, under the circumstances existing in 1900 and 1922, was impossible under law.[1]

[48 Del. 483] I am of the opinion that the foregoing factors necessarily give rise to the implication that the Legislature intended a cemetery, practically filled with graves, to be exempt from special assessments for local improvements.

The plaintiff has conceded that an unenforceable assessment is an invalid assessment. It has been stated that no case has been found upholding an assessment that could not be enforced. See 71 A.L.R. 328; 48 Am.Jur. ‘ Special or Local Assessments' § 100. On the other hand, it has been held that where the sole means of enforcing an assessment for local improvements is by sale of a cemetery property and such sale is impossible under the law, it follows by necessary implication that the Legislature intended such cemetery property to be exempt from assessment. SeeCave Hill Cemetery Co. v. Gosnell,156 Ky. 599, 161 S.W. 980; Woodmere Cemetery Association v. City of Detroit,192 Mich. 553, 159 N.W. 383; City of Gary v. Gary Oakhill Cemetery Association,186 Ind. 446, 116 N.E. 741; Jones v. Lacey,220 Ala. 390, 125 So. 635; cf., I ...


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