dissenting.
I agree with the majority that “the evidence would clearly authorize a finding that Mr. Kelley’s actions were an unlawful and unwarranted interference with Mrs. Moore’s exercise of’ the right of *683burial of Mr. Moore. I also believe that the majority is correct in holding that “the private right to bury Mr. Moore belonged only to Mrs. Moore and that the other appellees were not entitled to recover for an interference with that right . . .” In my opinion, this determination should have resulted in a further holding that the trial court erred in denying appellant’s motion for directed verdict as to all of the appellees except Mrs. Moore. However, since the majority has found the evidence in this case to support a recovery for interference with an easement of burial as well as for interference with the right of burial, I must respectfully dissent.
It is clear that whatever rights were violated by Kelley’s actions, a violation of appellees’ right of sepulture — the right to use the cemetery lot for Mr. Moore’s grave — was not one. The decision to have Mr. Moore’s body buried elsewhere was solely the result of his widow’s wishes and was based upon Mr. Kelley’s offensive and intrusive actions at the funeral service, not upon appellants’ refusal to permit the burial to take place in the cemetery. Compare Wright v. Hollywood Cemetery Corp., 112 Ga. 884 (38 SE 94) (1900). Thus, under the evidence, there was no violation of or interference with appellees’ property interest in the cemetery plot and the existence of their rights and interests in the plot is of no consequence.
The majority attempts to circumvent the clear absence of evidence supporting a violation of appellees’ property rights in the actual cemetery plot by relying upon the case of Roberson v. Allen, 7 Ga. App. 142 (66 SE 542) (1909) applying the landlord and tenant doctrine of “constructive eviction.” The majority relies upon the fact that, in Roberson, the defendant landlord’s conduct was “ ‘insulting and dictatorial’ and deprived the plaintiffs of the use of the property they rented from him.” While the majority sees “no difference in the behavior of appellant Kelley in the present case,” I can see no similarity. In Roberson, the defendant landlord wanted the plaintiffs off his property, demanded that they leave the property and did everything he could to force them to leave, including threatening to kill the plaintiffs’ stock and threatening personal violence against the plaintiffs. In Roberson, the conduct of the landlord clearly amounted to a constructive eviction. In the instant case, however, Mr. Kelley’s conduct — though clearly reprehensible and unjustified — did not constitute an interference with the property right to bury Mr. Moore in the plot which was subject to the easement for burial. The evidence demonstrated that Mr. Kelley’s actions were in violation of Mrs. Moore’s exclusive right, as the surviving spouse, to bury her husband and, therefore, I believe that it was error to fail to direct a verdict as to the remaining appellees, who, as next of kin, had no right equal to their mother’s in this regard. See Steagall v. Doctors Hospital, 171 *684F2d 352 (D.C. Cir. 1948) (citing Pollard v. Phelps, 56 Ga. App. 408 (193 SE 102) (1937)).
I also must dissent to the majority’s holding that it was not error for the trial court to charge with regard to recovery of damages for interference with a burial easement. As discussed above, the evidence in the case at bar would not authorize a finding that Mr. Kelley’s actions constituted a violation of any property interest in the cemetery plot itself. Compare Jacobus v. Congregation &c. of Israel, 107 Ga. 518 (33 SE 853) (1899); Wright, 112 Ga. 884, supra; Phinizy v. Gardner, 159 Ga. 136 (1) (125 SE 195) (1924). What the evidence would authorize is a finding that Mr. Kelley’s actions were a violation of Mrs. Moore’s personal right, as the surviving spouse, to be free from unwarranted and unlawful interference with her husband’s burial service. Stephens v. Waits, 53 Ga. App. 44 (184 SE 781) (1935). “The right of burial relates to the dead body and the right of sepulture to the cemetery lot.” 8 EGL Dead Bodies, § 2, p. 106 (1978 Rev.). While basically distinct rights, it is true that the right of sepulture is, by its nature, an incident of the right of burial. “[WJhoever [has] the right to bury [the] remains [has] the right to inter them” in a lot wherein there is a lawful right of sepulture. Wright, 112 Ga. at 887, supra. Accordingly, in some cases, the violation of the lawful right of sepulture, a property right, is the ultimate result of an interference with the right of burial, a personal right. “[T]he plaintiffs had a good cause of action against the defendants, arising out of their right to bury the body ... in this cemetery and in this lot, and the tort committed by the defendants, in preventing them from exercising this right, and in refusing to allow them, with the body of their loved one and the ‘funeral procession composed of friends and relatives,’ to enter said cemetery for this purpose.” (Emphasis supplied.) Wright, 112 Ga. at 891, supra.
However, it is also true that the right of burial may be violated where the wrongdoer’s actions do not ultimately result in an invasion of the owner’s property interest in the cemetery plot but constitute only an invasion of the personal right of the one charged with the duty of burial to be free from a wilful or wanton interference with the burial service. Stephens, 53 Ga. App. at 44, supra. The instant case is of the latter type. Mr. Kelley’s actions were an invasion of Mrs. Moore’s personal right to be free of wanton disruption of the burial of her husband. While this tort was committed in or around property in which Mr. Moore’s family had a burial easement, Mr. Kelley’s actions did not result in an invasion of the property interest that Mr. Moore’s family had in the plot. That Mr. Moore was interred elsewhere was ultimately because of his widow’s wishes in that regard, a desire understandably based upon Mr. Kelley’s violation of her personal *685rights. However, the fact that Mrs. Moore chose to have her husband’s body buried elsewhere as the result of Mr. Kelley’s unwarranted behavior does not demonstrate that there has been a wrongful interference on Mr. Kelley’s part with the property rights of the owners of the easement of burial. The mere fact that a violation of a personal right occurs on property in which the injured party has an interest does not give rise to a cause of action for an invasion of that property interest.
It follows that the contested charge in the instant case was not authorized by the evidence. It erroneously instructed the jury that Mrs. Moore was entitled to recover damages for an invasion of her easement of burial in the plot. The case having been submitted to the jury under a theory not authorized by the evidence, it is my opinion that a new trial must be granted as to Mrs. Moore. Kendrick v. Blackwell, 189 Ga. 225, 227 (2) (5 SE2d 633) (1939).
I am authorized to state that Chief Judge Quillian joins in this dissent.