Eden Memorial Park Ass'n v. Department of Public Works

In this action Eden Memorial Park Association and one of its directors in his capacity as a taxpayer seek to enjoin the Department of Public Works and state officials from constructing a freeway across land that Eden dedicated exclusively for cemetery purposes. The parties submitted the case on a stipulation of facts, and the trial court entered judgment for defendants. Plaintiffs appeal.

Defendants planned to construct the freeway in question as part of the National System of Interstate and Defense Highways pursuant to contracts with the United States. The California Highway Commission authorized the condemnation of approximately 12 acres of Eden's cemetery, and the Department of Public Works filed a condemnation action and secured an order for immediate possession. There have been no burials in the land involved. In Eden Memorial Park Assn. v. Superior Court, 189 Cal. App.2d 421 [ 11 Cal. Rptr. 189 ], the court annulled the order for immediate possession and prohibited further proceedings in the condemnation action on the ground that Health and Safety Code sections 8560 [1] and 8560.5 [2] precluded condemning Eden's land for the freeway. Defendant Womack, the State…

In this action Eden Memorial Park Association and one of its directors in his capacity as a taxpayer seek to enjoin the Department of Public Works and state officials from constructing a freeway across land that Eden dedicated exclusively for cemetery purposes. The parties submitted the case on a stipulation of facts, and the trial court entered judgment for defendants. Plaintiffs appeal.

Defendants planned to construct the freeway in question as part of the National System of Interstate and Defense Highways pursuant to contracts with the United States. The California Highway Commission authorized the condemnation of approximately 12 acres of Eden’s cemetery, and the Department of Public Works filed a condemnation action and secured an order for immediate possession. There have been no burials in the land involved. In Eden Memorial Park Assn. v. Superior Court, 189 Cal.App.2d 421 [ 11 Cal.Rptr. 189 ], the court annulled the order for immediate possession and prohibited further proceedings in the condemnation action on the ground that Health and Safety Code sections 8560 1 and 8560.5 2 precluded condemning Eden’s land for the freeway. Defendant Womack, the State Highway Engineer,…

I dissent. I would reverse the judgment for the reasons expressed by Mr. Justice Ashburn in the opinion prepared by him for the District Court of Appeal (Cal.App.) 27 Cal.Rptr. 503 .

Appellants’ petition for a rehearing was denied May 14, 1963. McComb, J., was of the opinion that the petition should be granted.