Hollman v. City of Platteville

101 Wis. 94 | Wis. | 1898

BaRdeeN, J.

This case must be considered and determined upon the certificate of the circuit judge. The recovery was less than $100, and the case could only be brought here for review upon a certificate of tbe trial judge, pursuant to sec. 3047, Stats. 1898. Tbe alleged bill of exceptions sent up with tbe record cannot be considered, and should have been stricken therefrom. As it appears to us from tbe statement of facts, the only question we need determine is whether tbe defendants are liable in damages for tbe cutting of tbe trees on tbe cemetery lot in question. As we view tbe case, it becomes unnecessary to determine whether plaintiff has the legal title to tbe lot or not. He entered into possession of tbe same in 1867, inclosed it by a fence, and planted tbe trees that were cut down, and, after tbe fence was removed, has cared for and attended to tbe lot, “ and has been in possession of tbe same, claiming it as a family burial lot,” ever since. "Whether bis right thereto be considered a mere privilege, right, or easement for tbe burial of bis dead, or whether bis rights have ripened into absolute title by adverse possession, it matters not for tbe purpose of this case. Some courts go so far as to bold that such an easement, as well as title to tbe soil, may be acquired and perfected by prescription, tbe right to which cannot be defeated by tbe owner of tbe soil. Hook v. Joyce, 94 Ky. 450. Others say that where tbe interment is in a public cemetery, when tbe parties whose duty is to give burial are not tbe owners of tbe soil, they would have no higher right than a mere easement or license. 3 Am. & Eng. Ency. of Law, 50, and cases cited. In any event, so long as tbe license continued, tbe lot bolder could maintain trespass for any invasion or disturbance of it, whether by tbe grantors or strangers. Partridge v. First Independent Church, 39 Md. 631. A case which reviews tbe authorities at length, and contains an ample discussion of tbe rights of lot claimants in cemeteries, is Bessemer L. & I. Co. v. Jenkins, 111 Ala. 135. It is there said: “It would seem, therefore, to accord with right principle and authority, that where one is permitted to bury his dead in a public cemetery, by the express or implied consent of those in proper control of it, lie acquires such a possession, in the spot of ground in which the bodies are buried as will entitle Mm to action against the owners of the fee or strangers, who, without his consent^ negligently or wantonly disturb it.” The plaintiff, having a right to and the possession of the lot in question, could certainly maintain an action against any person who unlawfully disturbed or interfered therewith.

But it is said that the statute (sec. 1439, R. S. 1818) gives-the right to the common council to regulate the cemetery, as trustees, and that their action in that regard was gwsi-judi-cial, and ought not to be interfered with. A perfect answer to this contention is found in sec. 1453, which grants the power to require any “ lot owner or occuj>ant to remove, rearrange, rebuild or repair any such trees or shrubs planted, fences, structures, headstones, or monuments, so as to comply with such regulations as they shall prescribe, by giving reasonable personal notice in writing so to do; ” and, if they fail to do so, they may cause it to be done, and recover the expense thereof from the person liable to such duty. This presupposes the adoption of proper regulations for the management and control of the cemetery, which seems not to-have been done in this case. Neither was there any pretense that any notice was given plaintiff to rearrange or remove the trees in question. The acts of the city were wholly without the lines of the statute, and without legal justification.

It is further urged that the city was engaged in an act for the public benefit, in which it had no particular interest, and from which it derived no special advantage in its corporate capacity, and therefore it cannot be held liable. The defendant city is a municipal corporation, charged with certain public duties in relation to the state and the public generally, as well as with obligations that are local and relate to the welfare of its members, and the regulation of its internal affairs. In the administration and execution of its legislative and governmental powers — snob powers as are, in their very'nature, public and in aid of the state' — it sustains no liability to one suffering injury, if such powers are imper fectly or negligently executed. Dillon, Man. Corp. §§ 965, 966. But, as respects the performance and execution of mere corporate duties, the rule is different. When the act done is within its charter powers and relates to the administration of local or internal affairs, as distinguished from its legislative, discretionary, or gwisi-judicial duties, the rule of respondeat superior applies, and the city wdll become liable for the act of its servants and agents, which it has authorized or adopted. Dillon, Mun. Corp. § 980. In this case there can be no question but that the defendant Stephens was the servant of the city and was acting under its authority. The answer expressly admits that the acts done by him were done under the direction and authority of the common council. The city had a right to adopt reasonable regulations for the management and control of the cemetery. It also had the power to enforce its regulations in conformity to the law granting such power. It had no right or authority to disturb or invade the possession of the lot held by plaintiff except in pursuance of its statutory authority. Its fault lay in the attempted exercise of its statutory.powers in an unlawful manner, and, having authorized the act done and having adopted the wrongful act of its servant, as appears by its answer, the city must be held to respond for the actual damage done. Dillon, Mun. Corp. § 972; Wilde v. New Orleans, 12 La. Ann. 15. See Wilson v. Mineral Point, 39 Wis. 160; Thayer v. Boston, 19 Pick. 511; Squiers v. Neenah, 24 Wis. 588; Crossett v. Janesville, 28 Wis. 420.

By the Oow-t.— The judgment of the circuit court- is affirmed.