121 Me. 44 | Me. | 1921
This is an action of trespass quare clausum to try title to a four-acre parcel of land in Machias, used as a burying-ground, and is before the Law Court on an agreed statement of facts.
On May 1, 1841, Amos B. Longfellow and Amasa B. Longfellow conveyed this lot by warranty deed to the inhabitants of Machias, describing it by metes and bounds, the description concluding with these words: “the same being intended for a burying ground and
Before deciding these contentions it may be well to consider the legal effect of the words in the deed to the town, viz.: “the same being intended for a burying ground and to be used for no other purpose.” These words import merely the purpose of the parties when the conveyance was made and their intention as to the future use to which the lot should be devoted. They did not in any way legally limit or restrict the title, nor did they constitute a condition subsequent. In Rawson v. School District, 7 Allen, 125, the words of the habendum were as follows: ‘ 'to the said town of Uxbridge forever, to their only proper use, benefit and behoof for a burying place forever.” In Barker v. Barrows, 138 Mass., 578, the conveyance was to the inhabitants of a school district, and this sentence followed the description: “Said lot of land to be used, occupied and improved by said inhabitants as a school house lot and for no other purpose.” The.court held that in neither instance was an estate upon condition subsequent granted. At most the words in the deed under consideration imposed but a moral obligation upon the town to use the premises for no other purpose' than for burial. The town has faithfully fulfilled this obligation, except that for several years, just when and for how long the record does not disclose, a schoolhouse was maintained upon the lot by the town but was removed prior to the plaintiff’s deed in 1891. The title of the town, therefore, under its deed was an absolute fee.
1. Abandonment.
There is no opportunity for the application of the doctrine of abandonment in the case at bar. “The characteristic element of
2. Adverse Possession.
After receiving its deed the town went into immediate possession of the lot, as appears from the agreed statement, cleared off surface rocks, constructed a wall of split boulders one rock in thickness and three feet high, as a retaining wall laid up against the bank along the front or highway side of the lot and said wall is still standing in fair condition for two-thirds the width of the front and in a dilapidated condition the remainder of the distance. Not long after the lot was conveyed to the town, five persons were interred within its limits, but their graves are unmarked and cannot now be located. Later on a schoolhouse was built by the town and used for several years before its removal. In 1901, nineteen years before this suit was brought, someone claiming to act for the town renewed the boundaries of the lot by spotting the trees on the lines. The town records show no vote authorizing such action, but it is difficult to believe that the person was not acting in the interest of the town. The lot is now grown up to trees and bushes, but on the easterly line as now spotted is a ridge of field rocks gathered from the cemetery lot and extending nearly the length of the line which is a little over twenty-five rods in length, and on the westerly line is a similar ridge of rocks running a few rods southerly from the highway, so that with the stone wall in front the lines of the lot are somewhat defined on three sides.
The plaintiff has failed to prove the necessary elements that ripen into title by adverse possession. The use of the cemetery lot as a pasture in connection with his own by the owner of the balance of the large lot, there being no division fence enclosing the cemetery lot, is the only act tending to show adverse possession and this would appear.to be occasional trespasses by wandering cattle rather than an open, notorious, hostile, exclusive and adverse occupation under a claim of right. Moreover, as long as the lot continued to cherish the remains of those once buried there we should hesitate to hold that the possession by the town had been or could be interrupted or invaded. Burial grounds cannot be regarded like other tracts of land. They are not the subject, of trade and commerce. They are in a sense consecrated ground and the law should and must protect them as such.
In order that there may be no misunderstanding as to a legal principle involved, it should be added that after the passage of R. S., 1847, Chap. 147, Sec. 12, and until its repeal by Public Laws, 1885, Chapter 368, a period of thirty-eight years, the State and therefore a political subdivision thereof might as a matter of law, if the facts
The plaintiff having failed to prove title as claimed, the entry must be,
Judgment for defendants.