42 N.J. Eq. 531 | New York Court of Chancery | 1887
This suit is brought by the attorney-general, by information, at the relation of Henry Congar and others, and by the relators, as complainants, against the mayor and common council of the city of Newark, to establish a trust in certain land in Newark, known as “ the old burying-ground,” and to restrain the defendants from removing from that land the remains of persons buried there, and to compel the defendants to keep and maintain the ground in decent and proper order, so as to protect the remains and memorials therein from desecration. The bill states that the relators and complainants are citizens of Newark and heirs and descendants of the old settlers of the town of Newark, and they bring suit, not only for themselves, but also for the benefit of all such other citizens, heirs and descendants, as may be made parties, and for the protection of the charitable use to which the burying-ground was, as they allege, devoted. The bill states that on the 10th of December, 1696, shortly after the settlement of the town, the proprietors of the province of East New Jersey, in pursuance of the concessions to actual settlers thereof theretofore made by them, granted to John Curtis, John Treat, Theoph-
“ All that small tract therein allotted for the burying-plaee, taking in the ■pond and meeting-house, being seven chains in length and four in width, ■bounded west by John Treat, south by John Johnston, north and east by highways.”
That as to that land the grant was made and was in the deed •declared to be made to the grantees and their heirs, to the only-proper use, benefit and behoof of the old settlers of the town ■of Newark, their heirs and assigns, forever, in common, and that it was also therein declared that the land was granted to be •and remain for the use in the deed expressed, and to be appropriated to no other use or uses whatever. The complainants allege that the greater part of that tract was then and thereafter used for and devoted to the use of a burial-place for the people ■of the town, those who settled the place — the old settlers — and their heirs and assigns, and that it has been reserved and kept
The answer states that the first settlers of Newark came there in May, 1666 ; that soon after they came they laid out the land, of which they had taken possession without leave or license, claiming it by occupation, and divided it among themselves into what they called home lots; that in order to secure a more perfect title, they bought the land from the Indians and took from them three conveyances therefor — one in 1666 and the others in 1667 ; that in laying out the town site they reserved streets, squares and public places for the common benefit of the people of the town; that among the portions so allotted was the tract set apart for a church and burial-place, and that that was common property ; that soon after the settlement the only building for religious worship in the town was built upon the property, and that in accordance with the original design of the settlers the bodies of all the settlers who died were there interred, and that the property was common to all the inhabitants — the meeting-house for worship and the burying-ground for interment; that up to 1713 the form of government' of the town was a pure democracy, in which all who lived in the settlement and were entitled to a vote were obliged to participate; that in that year the tract then known as the town of Newark was by royal patent created a township by the name of the “ Trustees of the Freeholders and Inhabitants of the Township of Newark,” and the government was thenceforward, to 1798, carried on under that charter; that'in the last-mentioned year the township was incorporated, and that the city was incorporated in 1836; that from the earliest settlement the land in dispute, or portions thereof, were used as a burying-ground, and interments were made in it from time to time of the bodies of persons who were inhabitants of the town, but that it was always common property under the control of the public; that the settlers denied the right of the Indians, although
It is evident, from the foregoing full statement of the main contents of the pleadings, that the city has no title to the land in question except such as it may have under the act of 1804, and the charter which provides that the mayor and common council and their successors shall, by virtue of the charter, become, and be absolutely and completely vested with, possess and enjoy all the lands, tenements, hereditaments, property, rights, causes of action and estate whatsoever, both in law and equity, in possession, reversion or remainder, which, at the time of the passing of the charter, were vested in the township as a corporation, according to such estate and interest as the township, as a corporation at the time of the passing of the charter, had, or of right ought to have therein. P. L. of 1836 p. 185, and P. L. of 1857 p. 117. If the title to the land was held by the township under the act of 1804 merely in trust for the purposes of the charity (use as a burial-ground), the city holds it in like manner, and upon the same trust. . But it is urged by the answer that the city holds it, irrespective of the act of 1804, as public property generally, without the impress of a trust, or of devotion to any particular use upon it. This claim cannot be sustained. How did the city get title, if not under the act of 1804? And what title has it except such title ? Before that act the title was in the grantees under the deed from the proprietors or the survivors or survivor of them, or the heir-at-law of the last survivor. If it
It is urged on behalf of the city that this act may be supported under what is known as the police power of the legislature, by virtue of which it may, in order to protect the health of the public, exercise, directly or by delegating it to the municipality, the power of directing the removal of bodies from a graveyard. It is enough to say on this head that the act is not an exercise of that power. According to the answer, it may be remarked, no interments have been made in the ground in question for nearly sixty years. The act provides that when lands held by the cities and municipalities of the state for burial purposes are or may be affected by any trust that they shall be devoted to that use, and in the judgment of the common council or other governing body the public good will be served by devoting such lands to other public uses, it shall and may be lawful in every such case to use such lands for any public use to which, in the judgment of the common council or other governing body, they are best adapted. This is not a grant based upon the power to prevent or abate nuisances, but, construed as the defendants construe it, it is a gift of power to the common council or other governing body to put (entirely at their discretion) land granted to the municipality in trust for burial purposes, whether located in or out of the city or municipality, to any or other public use to which they may think it best adapted; and that, too, without reference to any consideration of the public health to justify it. Nor can it justly be claimed that in view of the fact that no interments have been made for so long a period — since 1829— the use has ceased. The object of burial is not to put the dead away temporarily, merely, but to place them in a final resting-place. When land is given in trust for a burial-place, it obviously can by no means be said that the trust is at an end when