# Burke v. Wall

> Supreme Court of Louisiana · January 15, 1877 · 29 La. Ann. 38

URL: https://www.frixlaw.com/law-library/cases/7190996

## Case

- **Full name:** Nicholas Burke v. James Wall
- **Court:** Supreme Court of Louisiana
- **Decided:** January 15, 1877
- **Citations:** 29 La. Ann. 38
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Egan, File, Hereafter, Morgan, Wyly
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7190996

## Opinion text

Ox Rehearing.
This case is before us on a rehearing after a judgment against the plaintiff and appellant in the court below and in his favor in this court. Plaintiff claims the ownership and possession for many years of lot No. 18 in block No. 8 in St. Patrick’s cemetery of the city of New Orleans, the lot being situated at the corner of St. Anthony’s and Dominick’s avenues. He alleges that soon after his purchase on the twenty-second of December, 1857, he erected thereon an elegant and costly tomb at the expense of about thirty-five hundred dollars; that ho paid for the lot ninety-nine dollars; that he selected this a corner lot for its convenience and oonspicuousness, and that he. has enjoyed undisputed possession of said lot and all the servitudes thereunto belonging since 1857. He alleges that within a few days prior to the institution of suit the defendants have endeavored to destroy the convenience and oonspicuousness of his tomb by erecting tombs and monuments in St. Anthony’s avenue, thus obstructing petitioner’s access to his tomb and destroying its conspicuousness, and aho impeding the right which petitioner has in common with so many others to the use of these avenues, which have been de *41 voted to public use. ever since the formation of the cemetery. He alleges damage to the amount of one thousand dollars by the illegal acts of the defendants, and fears that others, encouraged by their example, will bury dead and erect tombs in the said avenue and others until access to his tomb becomes impossible for the purpose either of depositing the dead or paying the usual rites of cherished affection, and prays that defendants be perpetually enjoined from proceeding further in erecting tombs or monuments in St. Anthony’s avenue, in St. Patrick’s cemetery, and that they each be ordered to restore said avenue to its former condition.
To this petition the defendants answer by denying generally all its allegations, and specially deny that plaintiff has right or title to the proj>e?'ty, the 'privileges, the appnrtenanc.es, or the right of way, described and set forth in his petition.
Before proceeding to the discussion of the merits, we must first consider a motion by the defendants and appellees to dismiss this appeal for want of jurisdiction, because the amount in dispute does not exceed five hundred dollars. The plaintiff has alleged that he will be greatly inconvenienced in and may be deprived altogether of the use of property costing him near thirty-six hundred dollars, purchased and used for a family burial place and devoted to the memory and deposit of the bodies of the dead. He alleges damages of one thousand dollars, and files an affidavit declaring that his interest in the matter in controversy amounts to over five hundred dollars.
This case may well be considered similar to those embraced in the third paragraph of article 1934 of the Revised Civil Code, which provides “that damages may be assessed without ciflculating altogether on the pecuniary loss or the privation of pecuniary gain to the party, where the contract has for its object the gratification of some intellect-ual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are duo for their breach; a contract for a religious or charitable'foundation, a promise of marriage, or an engagement for a work of some of the fine arts are objects and examples of this rulé.” Will it be argued that the depositaries of the dead and the sentiments of natural affection of the living relatives and friends are less sacred or less valuable than the examples enumerated ? Again, this court has often taken jurisdiction of cases involving no money demand, as in cases of divorce or where some great public interests are at stake, not appreciable in money. In the case of Knight vs. Knight, 12 An. 59, for divorce unaccompanied by any money demand, the court maintained the appeal upon an affi lavit of interest to an appreciable amount.
The petition to dismiss is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7190996. Public record. Not legal advice.