This is a class action on behalf of owners whose pets were buried, for a consideration, on property set aside for that purpose by an animal hospital operated by defendant (and his father and grandfather before him). Plaintiffs seek a permanent injunction against removal of any of the pet remains or use of the property in question for purposes other than that of a "pet cemetery".*fn2 I determine that plaintiffs have failed to prove their entitlement to such relief.
The facts are as follows.
The parcel of land which the plaintiffs ask be designated a "pet cemetery" is an open space approximately 100' X 200' making up part of the backyard of the Millar Animal Hospital. The entire tract of land on which the hospital was situated consisted of some 5.8 acres in the Township of Ocean. From 1928 to 1963 the land was owned by the defendant's grandfather, Dr. Harry C. Millar. In 1930 he built the hospital and opened his veterinary practice together with his son, Joseph A.S. Millar. The building and lot on which the hospital is now situate continues to be used for the same purpose to the present day.
Harry C. Millar retired from the practice in or about 1955 leaving his son, Joseph A.S. Millar as the sole proprietor of the animal hospital practice. Harry C. Millar died in 1961. In October 1964 Harry C. Millar II joined his father, Joseph, in the practice and in 1980 became owner of the land as well as sole shareholder in J & H Millar, P.A. Dr. Joseph A.S. Millar died in 1982.
By 1984, because of advancing years and a heart attack in 1983, Harry C. Millar II decided to sell the practice. He did so, in 1986, and retired. In connection with the sale of the veterinary
practice, a 1.5 acre parcel which included the hospital building was subdivided from the original 5.8 acre piece and transferred to the new owners.*fn3 The "pet cemetery" is located on the remainder of 4.3 acres retained by defendant.
Harry C. Millar II's memories of the practice and of the handling of dead animals go back to his childhood and the early years of the Millar Animal Hospital. He and his father and mother resided in an apartment over the veterinary facilities. He recalls that the disposition of the remains of deceased pets has always been somewhat of a problem. Unless the owners requested otherwise the carcasses were buried in a common lime-pit in the 100' X 200' area or incinerated on the premises. Any ashes were simply put into a hole in the ground in that same area. After 1955 the hospital acquired a crematory oven and the Millars thereafter were able to offer pet owners the option of having the ashes of their pets returned to them.
Almost from the beginning, a few pet owners, particularly attached to their pets, wished the remains to be treated in a more formal fashion by burial in a specific spot in the 100' X 200' area. Some desired a simple coffin; some did not. Some wanted the burial spot marked; some did not. Beginning in the 1930s with Harry C. Millar, all of the Millars -- grandfather, father and son -- responded to such requests by offering, for a fairly nominal fee, the construction of a pine box of the requisite size, the digging of a grave, the burial, and the supplying of a wooden marker with identifying information on it. The owners were notified of the time of the interment; could be present if they wished and were free to visit the site thereafter whenever they desired. Income from this service was an insignificant part of the animal hospital total income.
Many owners never returned. Some did and would place flowers and the like on the grave sites on the anniversary of the date of death or on various holidays. Because the wooden markers ultimately disappeared, a few owners asked for and received permission to erect permanent markers, similar to those in a cemetery for humans. Photographs in evidence show that these vary from rather substantial stone markers to more modest but nonetheless permanent ones, flush with the ground. The burials referenced by these permanent markers span the years from 1935 to 1981. The last pet burial was made in 1984. Thereafter, unwanted carcasses were removed by a commercial service.
Other than the initial casket and burial charge, the animal hospital charged no fee for maintenance or upkeep of the cemetery area. The man employed as the caretaker of the hospital property cut the grass plots in front and on the sides of the building as well as that in the back (including the 100' X 200' burial area). He was the grave digger as well.
Interested owners were allowed to plant flowers if they desired. One installed a metal garden bench so that when visiting the spot, there would be a place for restful contemplation of the happiness which the pet had brought into the owner's life.
Most of the pets buried were predominantly dogs or cats. However, as the defendant testified, the remains of horses, goats, snakes, pigs, rats, mice, chickens, geese, ducks and pigeons were, over the years, disposed of or buried at the request of their owners.
As may be imagined, space in a plot 100' X 200' could well have become a problem with the passage of time. It did not. The primary reason is that no individual plots were created or in any way delineated. An owner could select a desired spot where there was no permanent marker. The maintenance man would run a rod into the ground to see if it struck any solid remains. If it did, the owner had to pick an alternate location.
If it did not, the hole was dug and the pet interred. Graves varied in length from 2.5 to 4 feet depending on the size of the pet. (There were times that in digging the hole some trace remains of a former burial were uncovered. In such case, the hole was dug deeper than usual; the trace remains placed in the added depth and covered and the new burial made on top). Thus, with the passage of years unmarked areas could be reused.
The Millars never advertised the existence of the "pet cemetery" in any fashion. Other veterinarians became aware of its existence and sometimes when asked by their patients, mentioned it to them. Although primarily a service for their clients, the Millars did not refuse a request for a pet burial from non-clients and charged them the same fairly nominal fee. The fee varied with the size of the animal.
Against that background the class of plaintiffs in this action was narrowed to those owners whose pets' burial sites were permanently marked and identified. This litigation commenced after Dr. Millar sent a letter dated July 30, 1988 to all owners of buried pets whose names and addresses could be ascertained from records of the business. It reads as follows:
After approximately 56 years, we can no longer pay the ever-rising and exorbitant costs of insurance, machinery and other expenses incurred in the maintenance of the pet burial area at the rear of the former Millar Animal Hospital in Oakhurst, New Jersey.
As you are no doubt aware, no charge was made to the owners of the deceased pets for the above or any other maintenance costs.
Consistent with our longstanding cooperation, we are giving you an opportunity for a period of ninety (90) days from the above date, to remove your pets' remains and any markers and monuments, otherwise the same will be subject to such disposition as may hereafter be made by the then owner of the land involved.
Shortly after the filing of the complaint, a consent order was entered restraining the defendant from disinterring any pet remains or in ...