Seymour v. Page

33 Conn. 61 | Conn. | 1865

MoOurdt, J.

In this case the alleged trespass consisted in changing a grass-walk into a suitable gravel one in the alleys of a cemetery. Which kind is preferable is a matter of taste, and the dispute is who had the right to exercise it.

The plaintiff owns a qualified fee in the adjacent lot and claims that his title extends to the middle of the alleys, in analogy to the right of an owner of land bounded by a highway. But the cases are so unlike that the well-settled rules of law which govern one are not applicable to the other. The controlling principle in both is the intention of the parties. In the sale of land bordering on a road, it would be absurd to suppose the parties to have meant that the seller should reserve to himself and his heirs and assigns, forever, a narrow -strip in front of the tract sold, which would ordinarily be of no benefit to him, but a perpetual injury and annoyance to the purchaser. In the absence of any express reservations or what is equivalent, the law, from motives of policy, presumes that the intention is to convey the whole interest. If, however, it appears from the language of the deed, or the object in view, or the circumstances of the case, that a limitation was meant, the presumption is controlled. Peck v. Smith, 1 Conn., 103.

Applying this test we are satisfied that the grant to the plaintiff does not include the fee of the alleys. The description in the deed is very exact. “ A certain lot, No. 341, on Central Avenue, 34 by 42 feet, containing 1,428 superficial feet, in section A, of the Spring Grove Cemetery, &c.” No reference is made to the alleys, unless it be inferentially, inasmuch as the plan is referred to on which they are marked. So far therefore as appears on the face of the instrument, nothing passes beyond the limits so minutely defined. If any further right was acquired, it must be on the principle of construction, to which we have alluded. But, as heretofore stated, there is little or no resemblance between the conditions of a highway and a cemetery, and in the latter the presumption is of a reservation rather than of a grant.

There is perhaps no purpose to which wealth and art can be more, properly appropriated than to embellishing the anticipated homes of the living, the cities of the dead. Beautiful creations of taste and genius relieve the external gloom, and soften the repulsive associations of the grave. In the preparation of a cemetery great skill and experience-are required in preserving and adding to the natural advantages of localities, in • grading, fencing, arranging walks, alleys, avenues and squares, and in planting and protecting trees, shrubbery, &c.; and it is absolutely necessary, in order to insure regularity, permanence, and progress, that these improvements should be under the control of one authority, acting in pursuance of matured and harmonious design. The very nature of the case excludes the supposition that each of the hundreds of individuals owning a mere right of burying in a particular spot, can go beyond Ms specified limits and derange this system, substituting deformity for beauty, as Ms own bad taste or temper may suggest, and this too by construction of law. The proprietor of a lot adjacent to an artificial lake or fountain would hardly claim title to the center of the water, with a right to use or drain it at his pleasure.

The object of what is called “ construction of law-” is to explain the meaning of parties, or to do justice between them, or to conserve some public policy. A grant is construed to imply whatever is necessary to the enjoyment of the-principal thing granted. In this case there was no necessity for the use of the alleys, as the lot was pei’fectly accessible from the avenues. Besides, it is found that the side alleys are for the accommodation of other owners of lots in the rear. So far as the plaintiff has a right to use them at all, it is in common with the others, and there is nothing to indicate, but everything to disprove, that he owns them in fee. The control of the aisles in a church pertains to the society and not to the holder of pews. Darnel v. Wood, 1 Pick., 102, and notes.

In respect to the evidence of usage or custom, presented by the defendant, we see no objection to its admission, although it would seem to be uncalled for.

The defendant’s father, in whose place he stands, had appropriated a large tract of land for an ornamental cemetery. He had laid it out in modern style and bound himself not to sell any part of it for other purposes. He had granted the lot in question for a burying place and for no other use. Now what is the import of all this ? What were the rights and duties of the parties? As we have seen, much was to be done, and that continually, to maintain and extend the improvements, to preserve the walks and avenues and squares from nuisance and obstructions, and to render the grounds as attractive as their character would admit. Who is to do this ?

To remove any ambiguity on this point, the custom in other similar places, especially in those of Hartford, was clearly admissible. In the case of The Schooner Reeside, 2 Sumner, 567, Judge Story lays down the rule. “ The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions and acts of a doubtful or equivocal character.”

The case is not varied by the fact that the defendant had allowed the plaintiff to do certain acts in the alleys in question, it being found that the defendant kept in order the avenues and unoccupied grounds, and. in the main the alleys of the cemetery. Nor is it material that the defendant made the declarations stated in the motion, taken with the meaning attached to them as found by the court.

We advise judgment for the defendant.

In this opinion the other judges concurred.