218 A.D. 682 | N.Y. App. Div. | 1926
The plaintiff and defendant are corporations each organized under the laws of a foreign State, the former being engaged in -the business of buying, developing and selling real estate. In April, 1925, plaintiff purchased from the defendant a tract of land located in the town of Halfmoon, county of Saratoga, State of New York, taking a deed with full covenants of warranty. This action was brought to recover damages. The plaintiff claims that a portion of the land which was included in the deed was a public cemetery to which the defendant could not give a good and marketable title.
It is further alleged that such lands constituted a public burying ground which was outside of the city or village and not subject to the ownership or control of any incorporated cemetery association, church or other incorporated body, but was subject to the provisions of chapter 777 of the Laws of 1868.
The amended complaint also alleges that the plaintiff purchased said property for the purpose of dividing it into lots and for the construction of houses thereon, which purposes were known to the defendant, and that the latter knew of the existence of the graveyard upon said tract of land; that it also knew of the fact that it had no title thereto, and that it was chargeable with such knowledge; that the defendant falsely represented and stated to the plaintiff that it was the owner of said premises and that the same were adapted for residential purposes'and that it concealed from the plaintiff the fact that the premises were incumbered by the existence of a graveyard having human remains therein; that such representations and concealments were made by the defendant with intent on its part that it should be relied upon by the plaintiff; that it was relied upon by the plaintiff; that plaintiff had no knowledge of the existence of said graveyard and that when plaintiff acquired title to said property and entered upon the same for the purpose of improving it, the plaintiff discovered that part
The amended complaint further alleges that the transfer was for a full and valuable consideration and purported to convey the premises in fee simple free from incumbrance; that said premises were not in fact free from incumbrance but that the cemetery thereon constituted an incumbrance which was inextinguishable.
The answer denies the general allegations of the complaint and sets forth two separate defenses: (1) Abandonment of any easement which the general public or any individuals had in the property for cemetery purposes; (2) "the title in the defendant and its predecessors by adverse possession acquired long prior to the time when title to said premises could have vested in the town in which the premises were situated.
The plaintiff moved to strike out the two separate defenses; The questions to be disposed of on this appeal are the sufficiency of the affirmative defenses alleged. May land be dedicated- to the public for cemetery purposes? If dedicated, what is the nature of the rights acquired by the public by the acceptance of such dedication? May the public abandon such rights, and if so, in what manner? May title to the property be acquired by adverse possession, and if so in what manner?
The defenses raised by the answer are proper and are properly pleaded. As to whether they can be established by proof is not now before the court. It is well settled that land may be dedicated to the public for cemetery purposes. The law on this proposition is established by early decisions (Beatty v. Kurtz, 2 Pet. 566; City of Cincinnati v. White, 6 id. 431; Smith v. Wilder, 6 Hawaii, 228; Wormley v. Wormley, 207 111. 411; Redwood Cemetery Association v. Bandy, 93 Ind. 246; Mowry v. City of Providence, 10 R. I. 52; Hunt v. Tolles, 75 Vt. 48; Tracy v. Bittle, 213 Mo. 302; 18 C. J. 47.) It follows that the acceptance of such dedication can only be made by acts of the public in the use of the property for cemetery purposes. Dedication and acceptance are questions of fact to be determined on the trial of the action. The right which passes with a dedication of this nature, is not an absolute title; it is a privilege or a license, not only to bury the dead in accordance with prevailing custom, but also the right of the living to place monuments or suitable decorations over the graves of their dead as memorials, and to preserve and beautify the premises. While these rights are created by the acceptance of the dedication of the premises, they are subject to loss as the result of abandonment and the failure of the public to maintain the cemetery as a burial place.
“ A common-law dedication did not pass the fee.” (Hunter v.
The foregoing authorities establish the proposition that there may be a dedication, acceptance and abandonment. The right to acquire adverse possession naturally follows. It is a question to be established as a fact.
Chapter 777 of the Laws of 1868 is cited by the plaintiff but it has no bearing on this case. The complaint does not allege the assumption or exercise by the town of any control over such cemetery lands. This statute applies only to those cemeteries
which are public and common.” The premises in question had lost their nature as such. The allegations in the answer, if true, show abandonment of such property.
The trial judge in his opinion makes an exóellent summary in the following language (127 Misc. 558, 569):
“ From what has been said it is clear that the right of the public and of relatives of decedents in a cemetery which has been merely dedicated and not conveyed by deed is a mere right in the nature of an easement and hence can be abandoned so that the whole use of the land reverts to the owner of the fee, and the public and persons theretofore having rights under the easement will lose them. That being so, it follows that the plea of abandonment contained in the defendant’s answer is sufficient in law. It should have the opportunity to establish its defense on the trial.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Cochrane, P. J., Van Kirk and Hinman, JJ., concur; H. T. Kellogg, J., not voting.
Order affirmed, with ten dollars costs and disbursements.