71 W. Va. 221 | W. Va. | 1912
Lead Opinion
Charleston was incorporated in 1794 as a town. In 1831 Daniel Ruffner made a deed to the president, recorder and trustees of Charleston forever “for use of said town as a graveyard or a place of interment for said town,” a lot of one acre of ground. The deed contained a covenant that if at any time the said corporate body should cease to exist, or become incapable of holding said lot of ground, then said Ruffner and his heirs should “stand seized to the use of said town of Charleston or the inhabitants thereof.” The deed contained the covenant that the “parties of the second part for themselves or successors do covenant with said Daniel, his heirs and assigns,. to keep the said lot of ground, suitably enclosed, and separate from the other land of the said Daniel.” The deed reserved to Ruffner a small part of the lot as a private cemetery “and as containing the bones of his parents.”
In 1898 George S. Couch made a proposal to the city council to buy this acre for $1,000.00.
On the 20th January, 1898, the council of Charleston passed an order reciting that the said lot “is not now nor has been for many years nor ever will be again used as a burial ground and is therefore no longer of any use to the said city; and whereas said lot is at constant expense to maintain in presentable condition, and is moreover made a rendezvous for immoral purposes,” and reciting the offer of Couch to purchase. The order accepted the proposition of Couch, and directed a deed to him; on the next day a deed was made to him and he paid the $1,-000.00 consideration. In April, 1898, George Ritter, James E. Lewis, Julia E. Petty and Dulce Rowena Laidley brought the present suit against Couch, the city of Charleston and heirs of Daniel Ruffner, for the purpose of annulling the deed from the city of Charleston to Couch, and to declare void the action of the council selling the lot to Couch, and to enjoin them from attempting to remove, transfer or obliterate in any way the graves of the relatives of the plaintiffs. The plaintiffs had for many years been residents of Charleston, and had buried in
The right of the plaintiffs to maintain this suit is questioned - It is said that the plaintiffs or their families never purchased, any lots in the graveyard, or had any other right beyond a naked license. It is very certain that the city acquired the lot for burial purposes; that it took possession of the lot and enclosed it and controlled it as a burial ground; that it permitted through many years the burial of the dead in it; and thus it is clear that it received this lot and dedicated it to public use for the-burial of the dead. Nothing is wanting on the part of the city to show that it consecrated and dedicated the lot for the burial of the dead. The kindred dead of the plaintiffs lie in that old pioneer graveyard under this dedication and consecration. The-municipality of Charleston acquired this property for public use, and devoted it to this use, a legitimate public use, as the burial of the dead is indispensable. Land so acquired by a municipality for such purpose and dedicated, is a dedication to a pious and charitable use. Hopkins v. Grimshaw, 165 U. S. 342; Evergreen Cemetery v. City of New Haven, 21 Am. R. 643. In the last named case the court said: “All must be regarded alike as consecrated to a public and sacred use. The idea of running-a public street regardless of graves, monuments and the feelings, of the living, through one of our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity.” These authorities. say that the dedication is irrevocable no matter that there is no purchase of lots or grave places. The city allowed entrance to-the dead without let or hinderance. It is said, furthermore, as an argument against the right of the plaintiffs to sue, that Couch does not propose to disturb the graves of the dead. Perhaps not now; but he was careful to insert in the deed from the city to him a provision limiting the right of the city or any person to four months from the date of the deed to enter the-
Can the kindred of the dead interfere for their protection?' Can they call upon equity to do so? In Beatty v. Kurtz, 2 Peters 566, Justice Story said: "This is not the case of a mere private trespass, but a public nuisance going to the irreparable
In Wynkoop v. Wynkoop, 82 Am. Dec. 513, we find this note reflective of the law: “By the old English law, the body was not recognized as property, but the charge of it belonged exclusively to the church and the ecclesiastical courts, as did also the administration of estates. So while there was property in the burial lots, in the monuments, and in the ornaments and decorations of the deceased or his grave, there was none in the remains themselves: 2 Bla. Com. 429; note to Pierce v. Proprietors, etc., 10 R. I. 237; S. C. 14 Am. Rep. 667; and there are some decisions to the same effect in the United States: Snyder v. Snyder, 60 How. Pr. 368; Meagher v. Driscoll, 99 Mass. 284; In the matter of the Bride Presbyterian Church, 3 Edw. Ch. 155; for it said that after burial the body becomes a part of the ground to which it has been committed; “earth to earth, ashes to ashes, dust to dust”: Meagher v. Driscoll, 99 Mass. 284. These notions, however, may possibly be borrowed from the ecclesiastical law, and arise from a false and needless assumption in holding that nothing is property that has not a pecuniary value. “The real question is not of the disposable, marketable value of a corpse or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order to decently bury it, and secure its undisturbed repose. The dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the
If relatives of blood may not defend the graves of their departed who may? Always the human heart has rebelled against the invasion of the cemetery precincts; always has tbfe human mind contemplated the grave as the last and enduring resting place after the struggles and sorrows of this world. When the patriarch Jacob was dying in Egypt he spake unto the Israelites
When once property has been dedicated for a special purpose, as for a burial ground, or where a city has dedicated it for that purpose, and persons have acted upon the faith of such dedication by burying their loved ones there, the city, cannot devote the property to any other purpose. Tiedeman on Munic. Corp., sec. 229. See sec. 222. “It is manifest that a municipal corporation has no implied authority to dispose of lands which have been dedicated to it for public benefit; nor would such property be subject to sale for the payment of debts of the municipal corporation. Lands which are dedicated to the public use, are not even alienable, when on account of surrounding circumstances they become unsuitable for the use for which they were dedicated.” Only the legislature can authorize municipalities to dispose of them. Think of a lot conveyed to a town for the purpose in the minds of grantor and grantee both of its use as a burial place. The grantor having already buried the bones
The act of the city in selling this lot to Couch cannot be justified on the ground that the lot was a public nuisance. There is no evidence of this, and it is to be remembered that the city never declared it to be a nuisance, or ordered or forbade its use for burial, or ordered disinterment of the bodies therein. That a cemetery per se is not a nuisance is supported by many authorities. Kingsbury v. Flowers, 39 Am. R. 14; Lake View v. Rose Hill Cemetery, 22 Am. R. 71; Dunn v. Austin, 77 Texas 139. The briers and weeds grew up in it. What of that? The blackberry’s flower is as sweet to the dead as any. The weed, though so. called, spreads “its perfume on the desert air.” They too are nature’s- tributes to the dead.
“Above the graves the blackberry hung
In bloom and green its wreath,
And harebells swung as if they sung,
The chimes of peace beneath.”
So sings Whittier in “The Old .Burial Ground.” As to its use for immoral purposes. A fence and locked gate would obviate that. And where the police?
In what I have said above I have assumed that the town held the lot charged with a public trust. The authorities above go to establish this. It is well established that a town can accept a dedication of land for public purposes. Boughner v. Clarksburg,
Great reliance is placed by the defendants on the case of
So we do not think the town had capacity to sell this graveyard ground. Charged by the deed from RufEner with the duty of holding for burial, charged by its own act of dedication to that use for many, many years, by its sale to Couch it disowned and abdicated its trust for the use of a private individual, which we said it could not do in Pence v. Bryant, 54 W. Va. 263. By
These views lead us to affirm the decree. .
Affirmed.
Dissenting Opinion
(dissenting) :
I realize that the preparation of dissenting opinions is generally a work of supererogation; and yet, when I am unable to agree with my associates, I think a proper regard for their opinions, as well as a decent respect for my own, affords sufficient excuse for the needless labor. The parties to a suit and their counsel are entitled to the several opinions of the judges, when there is want of concurrence.
While I have a very high regard for the opinions, generally, of my associates, and especially for the opinions of the judge who wrote the opinion in this case, because of his wide knowledge of the law and long service on this Court, still I am so thoroughly convinced that this decision is contrary to all the law applicable to the case, that I can not yield my own judgment, not even to so eminent a judge as he. Each judge arrives at his own conclusion, after a careful examination of the law, and it is, there
There is no controversy as to the facts in this ease; they are set out in a written agreement signed by opposing counsel. That the council met at night and; by resolution, closed the deal with Mr. Couch, is not material. There is not a particle of evidence of fraud. It is common knowledge that such meetings are as often held at night as in the daytime. Mr. Couch's good faith is shown by the fact that he had asked the council at other times to convert the lot into a park; and that he had, years before, submitted a written proposition to buy the lot and remove and re-inter the remains of the dead, on certain terms. There is no question of fraud before this Court.
I agree that the relatives of the dead have such an interest in their remains as will entitle them to resort to equity, if necessary, to prevent the unlawful disturbance of their graves; but I deny that any such case is here presented by the facts; there is no evidence that Mr. Couch.was interfering with the graves, or that he was about to do so. He would have been liable to criminal prosecution if he had done so. without first obtaining authority from the proper source. On the contrary, the agreed fact is, that the graveyard was in better condition when this suit was brought than it had been for twenty years before. Further than the right to have the graves of their relatives protected from unlawful molestation, the property right of each citizen of Charleston in the lot was the same; the right of one was not superior to another.
The principal question, in the case concerns the city’s power to control the use, and to make disposition, of the graveyard; other questions arising have more or less bearing upon this one, but they are only incidental to it.
I freely confess that,_ when this case was argued orally, more than a year ago, I received impressions which strongly inclined me to the view that the city had not the right, or power, to .dispose of its title to ground which it had bought for burial purposes, and-in which many bodies yet remained. It is a case that appeals strongly to one’s sentiment and feelings; and, when
The council of the city is given power under its charter to “purchase and hold or sell real estate and other property necessary to enable them the better to discharge their duties and needful for the good order, government and welfare of the said corporation; * * * to abate or cause to be abated anything which in the opinion of the council shall be a nuisance; * * * to provide in or near the city places for the burial of the dead, and to regulate interments in the city; * * * to promote the general welfare of the city and to protect the person and property of the citizens therein.” Is it possible that under such broad powers, the city can not dispose of its title to the lot in question, in the interest of the general welfare of the city, but is bound to keep it, regardless of its location, condition and its present surroundings, notwithstanding the council has long since provided a more beautiful and commodious cemetery, on the hill overlooking the city, sufficient to accommodate the remains of those who are now buried in the old graveyard as well as the bodies of those who may die in many years yet to come? I can not so believe. I think the charter powers of the city were intended by the legislature to meet the exigencies of just such a case as this.
No limitation is put upon the city’s right to dispose of the lot by the terms of the Daniel Rulfner deed. Then, whence the limitation? The opinion admits that the deed conveyed an estate in fee absolute. There is clearly no declaration of trust in the conveyance. Wherefore, then, deny the city the jus disponendi, a right incident to all estates held in fee ? The city
The opinion contains a very elaborate disquisition on the question of a dedication of land to a pious use. But I can not see that that question has any application whatever to this case. I think I have shown that Mr. Ruifner did not dedicate the ground in any sense of the term; and I think it is a use of the term, unwarranted in law, to say that the city dedicated it; the city simply used it for a particular purpose. But, let it be admitted that the city did, in a certain sense, dedicate the ground to a particular use; the question then arises, to whom did it dedicate it? The deed by which it took title answers that question; it says that it was “for the use of said Town as a Grave Yard, or place of interment, for the said Town.” Who constituted the town, now the city of Charleston? Its citizens. So that, the only dedication the town could, or did, make, was a dedication to itself. It was not authorized by its charter to buy land for any other uses than its own. If it held the property in trust, it held it in trust for itself, just as it holds any other land necessary for the performance of its governmental function. If it was, trustee, it was also cestui que trust; and the union of beneficial interest and legal title in the same individual, or corporate body, certainly confers the right of control — the jus disponendi. Deferentially speaking, I think the opinion presents a confusion of ideas, originating in the conception that the city is a trustee holding legal title for the benefit of its citizens in their individual capacity. But their property rights are not individual and distinct; they are only such as exist be
Hone of the cases cited in the majority opinion, on the question of dedication, deal with the point presented by the facts of this case. They all relate to dedication of land by individuals, or by private corporations, to a public use. But even then, the authorities all hold that the use is subject to the governmental control of the municipality, but that, on the cessation of the use, the title to the land dedicated reverts to the former owner or his heirs. In the present case, the city, holding the absolute title in fee, would continue to hold it after the use to which the land had been put had ceased.
There was no grant by the city to any of its citizens for burial plots. The right of interment was a right in common to all the citizens of the city, and amounted only to a mere privilege, or license, revocable at the will of the municipal authorities.
“The right of burial in a public cemetery is not an absolute right of property, but a privilege or license to be enjoyed so long as the place continues to be used as a burial ground, subject to municipal regulation and control, and legally revocable whenever the public necessity requires .it.” Page v. Symonds, 63 N. H. 17. See also, Went v. M. P. Church, 87 N. Y. 266; Ex parte McCall, 68 S. C. 489; Richards v. Northeast Protestant Dutch Church, 32 Barb. 42; Price v. Methodist Church, 4 Ohio 515; Sohier v. Trinity Church, 109 Mass. 1.
The opinion admits that the legislature can authorize the city to dispose of the land, but I assert that it has already done so. The city bought it under the power conferred on it by the
A statute authorizing a municipality “to pass by-laws respecting the health, good government, and walfare of the place,” has been held to confer power to discontinue the use of a burial place in the city. 2 Dillon on Munic. Corp., sec. 682, and cases cited in note 1.
The power “to make regulations to secure the general health of the inhabitants and prevent and remove nuisances,” was held, in Campbell v. City of Kansas, 102 Mo. 326, a sufficient grant of police power to authorize the prohibition of burials and the discontinuance of a graveyard in the city; notwithstanding the city did not own the graveyard.
In People ex rel Oak Hill Cemetery Association v. Pratt et al., 129 N. Y. 68, it was held that the charter of the City of Rochester, which gave it power “to make, modify and repeal ordinances and by-laws to regulate the burial of the dead,” was sufficient to authorize the city to forbid the burial of the dead in lands of a cemetery association within the city limits, notwithstanding the city had previously given the right to the association to so use its land.
Presbyterian Church v. City of New York, 5 Cowen 538, is very much in point. The city of Yew York had there conveyed the lands to the church for a cemetery, and had covenanted for quiet enjoyment; and afterwards, pursuant to power given it by the legislature, passed a by-law prohibiting the use of the lands as a cemetery, and the church brought an action for an alleged breach of the covenant. The court held that the discontinuance of' the graveyard did not create a breach which entitled to damage, but was a repeal of the covenant for quiet enjoyment; also, that a municipal corporation could not, by contract, abridge its legislative power. There the city’s charter authorized it, to pass by-laws “for regulating, or if they find it necessary, preventing the interment of the dead within the said city.” That decision was later approved and followed in Coates v. Mayor, etc. of New York, 7 Cowen 585. In the latter case it was held, also, that the by-law need not recite on its face that it was necessary, but that the necessity was implied by the act of passing it; and that necessity meant “what is necessary for
In Kincaid’s Appeal, 66 Pa. 411, which seems to be a leading case on the subject, Judge Sharswood, on page 423, says: "We can not doubt that it is competent for the legislature to authorize or to delegate that power, (i. e. to discontinue a cemetery and to remove the remains of the dead,) to the municipalities. It is a police power necessary to the public health and comfort. As they can authorize the removal of any other thing which they deem a nuisance by a summary proceeding, without a jury trial, so they can authorize and direct the removal of dead bodies from any ground, and the consequent vacation of it as a burial ground.” In that case, however, there was a special act of the legislature of Pennsylvania, providing for the discontinuance of the burial ground, and the removal of the dead; so, also, there was a like special act by the West Virginia legislature in the case of Brown v. Caldwell, 23 W. Va. 188. But special acts in those cases were necessary for the reason that the cities did not own and control the respective properties. In the Pennsylvania case the land was owned by a church which had granted burial lots to individuals; and in the West Virginia ease the land had been granted to trustees upon a trust not for the city.
That the city passed no ordinance discontinuing the use of the graveyard, or declaring it to be a nuisance, can not affect the case. Such a resolution was not a condition precedent to its power to convey the land. Its use as a burial place had been practically discontinued; no one had been buried in th^ lot since 1872, and no care was taken of it. The deed to Couch, of itself, operated to discontinue the use, and a formal declaration of such discontinuance was not necessary. The city had provided a new burial place for its citizens, and thereafter bestowed no care upon the old graveyard; non-user and neglect by the city to care for it, for nearly thirty years, was certainly sufficient notice to the friends of the dead buried there that the city had ceased to maintain it as a cemetery. Many persons
As cities grow in size and increase in population, it is a prevailing custom to discontinue old burial grounds, and to establish others in more desirable localities, remote from densely populated districts and away from the turmoil of business. The city is not required to justify its action in selling its own property; but if it were, it could no doubt do so on two grounds;-, first, that it had provided for its citizens another and a better-place for interment, to which they had a right to remove the-remains of their friends from the old graveyard, and had, therefore, performed its full duty in the premises; and second, that the old graveyard was so sadly neglected, and so much frequented for immoral purposes, that it had become a nuisance. The charter gives the council the right “to abate or cause to-be abated anything which, in the opinion of the council, shall be a nuisance.” Wood v. City of Hinton, 47 W. Va. 645; Baumgartner v. Hasty, 100 Ind. 575; Hart v. The Mayor, 3 Paige Ch. Rep. 213; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; 2 Dillon on Munic. Corp., see. 689.. But the power to declare a thing a nuisance, is given to enable the municipality to compel a private owner of property to change
But, it is suggested that the city council had no right to neglect the ground and suffer it to become a nuisance. A complete answer to this argument is the fact that the city had provided another cemetery, and desired to discontinue the use •of the old one. It was not obliged to maintain more cemeteries than were needed. The relatives of the dead buried in the old graveyard had the privilege of removing their remains to the new cemetery; many of them did so; and thereafter no interments were made in the old one.
The municipal authorities, and the purchaser are charged with making commerce of the bones of the dead. But, is it not evident that the bodies interred there detracted from, rather than added to, the commercial value of the lot? Is a man forbidden to dispose of his land because he has permitted his neighbor to bury his dead in its soil? Certainly not. By permitting the citizens to bury their dead in the lot, the municipality did not dispose of any of its property rights, or relin
Would it not be more in accord with the sentiment, so eloquently spoken of in brief of counsel, if the friends of those who sleep in the old graveyard should wish their remains removed to the new cemetery overlooking the city, where their final abodes could receive respectful attention and care, rather than that they should be allowed to repose forever in a place so much neglected that it had become a rendezvous for crime ? If land, once devoted to burial purposes, could not thereafter be used for any other purpose, it would not be many centuries until the face of the earth would be wholly occupied by the dead, and there would be no place for the living. So, while it is true that the law does have tender regard for the sentiment of .the living for the dust of their dead, and protects their graves from unlawful desecration by punishment, as for a crime; still it acknowledges the earth as the only habitation for the living, and gives them a superior right to the soil.
I have shown, I think, that the right of interment was not a property right, but a mere license, or privilege, revocable at the will of the city.. That being so, it follows, as certainly as the night follows the day, that no one who has used the privilege has the right to refuse to remove the remains of his dead and thereby prevent the city from disposing of its property. The city did not bury the dead; wherefore, then, its obligation to remove the bodies, before being allowed to sell its ground? It permitted the burials, and it likewise permitted the removal of the dead, from the year 1872 down to the making of the deed to Couch, and four months thereafter, a period of more than twenty-five years. Was not that sufficient time for any one, who desired to do so, to remove and re-inter the remains of his relatives? It would certainly seem so. “Once a grave yard always a grave yard,” may be a prevailing sentiment, and it may have been also the law of Canaan in the days of patriarchal government, four thousand years ago; but it is certainly not the law of our land, or of our time. I would not willingly offend the sacred sentiment with which we all regard the dust
“What's hallowed ground? Has earth a clod
Its maker meant not should be trod
By man, thei image of his God.
Erect and free,
Unscourged by Superstition’s rod
To bow the knee?"
The general public will have small interest in the graves, and in the monuments erected over the final resting place of most of us; and the surviving friends of those who die need no glittering shafts, or eloquent inscriptions, to remind them of their loved ones, for the tie of kinship endears the memory, and “to live in hearts we leave behind is not to die.” The embalmed bodies of Egyptian kings and nobles, buried three thousand years ago, are now exhibited in the museums of the country, as curios. If we could discover that lost art, would we practice it? I hope not. I rather think we are gradually losing our prejudices and finding our senses; and will realize, before many generations, that cremation, a much more sanitary method of disposing of the dead, can be made just as sacred a rite as burial.
The covenant by Daniel Ruffner and his heirs to stand seized of the lot “to the use of the said town of Charleston or the inhabitants thereof,” in the event the town should become incapable of holding the title, was made for the benefit of the municipality, and was intended to prevent a failure of title, in case the municipality should forfeit, or lose, its franchise. It does not affect the city’s title, or limit its power to make disposition of the lot. The covenant was made to meet a contingency which appears never to have arisen.
The fact that Daniel Ruffner excepted from the operation of his deed the plot of ground 35x45 feet within the bounds of the
Law is not an exact science, but a thing of growth and development. Its aim is to do justice; but, as man himself is fallible, it follows that the institutions which he has established for the guide and government of society often fail to accomplish the end desired; but that is no reason why he should not continue his efforts to improve them. Men of the legal profession fully understand that the great body of our law is court-made; that is, it originated in judicial decisions which have come down to us through the centuries. The legislature has made only a fractional part of the law by which society is regulated, and under which its members transact business, one with another.' Therefore, when the courts of the present day undertake to interpret and apply what is known as the unwritten law to the facts in any given case, they should do it so as to meet the needs of the complex and highly organized society of the present, so far as this can be done with consistent respect for well established rights and principles. I am convinced that the Court, in reaching its conclusion in this case, has1 not only refused to be guided by the present needs of society, but has overridden the recent interpretations of the law, respecting such cases, made by the highest courts of every state in the Union that have spoken on the subject, and has taken a most wonderful backward stride; all of which I regret exceedingly.
I would reverse the decree and dismiss the bill.