144 P. 490 | Or. | 1914
delivered the opinion of the court.
Upon a consideration of the whole record it appears to be conceded by the defendants as a fact that
“Time is not an essential element of abandonment. The moment the intention to abandon and the relinquishment of possession unite, the abandonment is complete. ’ ’
In 1 R. C. L., page 4, it is said:
“Public rights, such as the easement of passage which the public has in respect of a highway, may be lost by abandonment. * * The act of relinquishment of possession or enjoyment must be accompanied by an intent to part permanently with the right to the thing, otherwise there is no abandonment, and the moment the intention to abandon and the relinquishment of possession unite the abandonment is complete, for time is not an essential element of abandonment. Therefore, in any case where a question of abandonment is involved, the important fact to be determined is what was the intention of the' person whose rights' are claimed to have been abandoned.”
The dedication of the cemetery is evidenced by a deed from John W. Grim and his wife under date of January 29, 1873, whereby in consideration of $1 they conveyed to Alfred Hovingden, John S. Smith and G. W. Dimick, as trustees of Grim’s burial ground, and to their successors in office, a certain tract of land described thus:
“Commencing at a stake on the north side of the road leading from the said John W. Grim’s to Butte-ville; thence in an easterly direction fourteen rods to a stake; thence northerly forming a regular square eighteen rods to a stake; thence westerly fourteen rods to a stake; and thence in a southerly direction eighteen rods to the place of beginning, containing one and one-half acres and twelve rods. To have and to hold the said premises as a burying-ground to the said trustees and their successors in office forever.”
The testimony shows that even prior to the date of the deed people had buried their dead in that ground, and this continued afterward. Later on, most of the bodies were removed by friends and relatives to another cemetery, but it is the undisputed testimony of witnesses who speak from personal knowledge that there are yet bodies remaining buried in the graveyard thus constituted.
The conclusion is that the decree must he modified so as to quiet the title of plaintiffs as against the county in respect to the road as described in the defendants ’ answer, but to dismiss the suit as to the defendants Grim; neither party to recover costs or disbursements from the other in this court.
Modified.