Balch v. County Commissioners of Essex
103 Mass. 106
Mass.
1869
Check Treatment
Wells, J.

The proceedings for laying out and taking the land in question, for the purpose of enlarging the burial ground belonging to the town of Groveland, were all regular and sufficient, in form. The case finds a refusal by this petitioner to sell his land for the purpose; and that the only other owners held by such title as gave them no power to sell. That fact, of incapacity to sell, is a sufficient refusal to answer the condition of the statute in this behаlf. It appears also ‍​​​‌​​​​​​​​‌‌‌‌​‌‌​‌​​‌‌​‌​‌​​‌​‌​‌​​​‌​‌‌​​‌‌‌‍that the application of the selectmen to the county commissioners was made with the approbation, and in compliance with the vote, of the town. These facts are sufficiently set forth in their application. The record of the county commissioners shows notice to all parties interested; and an adjudication upon the necessity of the enlargement, and upon the quantity and boundaries of the land adjudged necessary to be taken; and also the damages occasioned to the petitioner.

*115The objections to these proceedings mainly turn upon the question of the right of ‍​​​‌​​​​​​​​‌‌‌‌​‌‌​‌​​‌‌​‌​‌​​‌​‌​‌​​​‌​‌‌​​‌‌‌‍the town to take, for the purposes of a burial ground, under the St. of 1866, c. 112, lands already appropriated to a like purpose by private grant. The statute is applicable to any “ adjoining land needed for such enlargement.” The right to take such land cannot depend upon the state of the title, ‍​​​‌​​​​​​​​‌‌‌‌​‌‌​‌​​‌‌​‌​‌​​‌​‌​‌​​​‌​‌‌​​‌‌‌‍however it may be limited among the owners, whether in possession or in expectancy. It can make no difference that the legal title is in one, and the equitable title in others, or in an indefinite class of cestuis que trust. The title or interest of the “ East Parish in Bradford,” and of the various persons who, as members of that parish, or by individual сontract, bad acquired rights in the “ ancient burying ground,” so far as the same is regarded as a right of property, ‍​​​‌​​​​​​​​‌‌‌‌​‌‌​‌​​‌‌​‌​‌​​‌​‌​‌​​​‌​‌‌​​‌‌‌‍or title in the land, is just as much subject to this рower of public appropriation as is the title of the sole owner of an absolute fee. The objection then must rest, if at all, in thе purposes to which the land had previously been appropriated.

All inclosures appropriated for the burial of the deаd, whether for public or private use, are protected by law against desecration and improper intrusions. Whether the actual occupation of ground by private proprietors for the uses of burial might, in any case, be held to exclude the right of the town to convеrt the same into, or include it within the limits of, a public cemetery, and subject it to the control of the town authorities, is a question which we have nо occasion to decide in the present case. The “ancient burying ground” was a public “burying place,” to the extent of that parish; ‍​​​‌​​​​​​​​‌‌‌‌​‌‌​‌​​‌‌​‌​‌​​‌​‌​‌​​​‌​‌‌​​‌‌‌‍and the “land bought by Gardner B. Perry and others” was in trust to be “allotted or assigned for public or private use ” as found most convenient. By the terms of the lаying out, there were reserved “ to the proprietors of lots, and also to the families of the East Parish in Bradford, all of the lights that they now possess.” So far as individual rights of burial are concerned, they have not been disturbed. On the other hand, the reservation of those rights is in no manner inconsistent with the purpose contemplated by the statute conferring this power. The character and purposes of *116the apprоpriation, under the statute, are the same with those upon which the land was previously held. The only change is in the legal title of the generаl proprietors; and in the supervision, so far as that supervision depended upon proprietorship. We are satisfied that there is no legal objection to the enlargement, on account of the character and previous appropriation of thesе adjoining lands.

This disposes also of the objection of the petitioner, that the strip, taken from his separate land, was not “ adjoining land ” to the burial ground of the town. The commissioners adjudicate upon the quantity and boundaries of the land adjudged necessary to be taken. This adjudiсation has no reference to boundary lines between proprietors of lands; and need not be in any manner affected by them. Those lines only become of importance in the adjustment of damages for land taken.

The only remaining objection arises upon the allegation of the petitioner that the strip of land, taken from his private estate, was taken for a road, and not in reality for the purpоses of a burial place. We think we ought to regard it as having been made to appear that, in fact, there is no purpose, on the part of the town, to cause burials to be made upon that specific portion of the enlargement; but that it is to be left open аs a part of a passageway by which the cemetery is reached from Main Street upon that side. The statute does not authorize the taking of land for the purposes of a road or passageway. But it does not preclude the appropriation and use of рortions of land, taken for enlargement, to the subordinate and incidental purposes of walks, avenues and passage or drive ways. Neither the subsequent use in that mode, nor the previous purpose so to appropriate portions of the land, would invalidate a laying out which was made in good faith as a needed enlargement of an existing burial ground. The circumstance that the avenue or passageway, or a portion of it, is upon the exterior boundary of the enlargement, and is taken from land of a proprietor from whom no and is tаken except that covered by the way, serves to present the question in its most formidable aspect. But the propriety and legality of the laying out cannot be affected by any acct *117dental circumstance arising from the manner in which the lines of individual titles may happеn to intersect the land adjudged to be necessary for the enlargement. No part of the land is laid out as a highway, town way, or private wаy. The laying out affixes no character, and imposes no easement or burden, upon the strip of land in question, different from that which applies to the whole tract taken. The objection of the petitioner is, in substance, that, inasmuch as the strip taken from his land is to be used as part of an avenue, and not specifically for interments therein, the taking and laying out of that strip is shown to have been for other purpоses than the enlargement of the burial ground of the town; and thus without the authority of the statute. We think this is a question upon which the decision of the cоmmissioners, acting in good faith, must be held to be conclusive. Their authority covers the adjudication not only of the necessity, but of the extent аnd boundaries of the land required. We see no reason in this case to hold that they have exceeded or departed from their legitimate authority.

Writ of certiorari refused.