213 Mo. 302 | Mo. | 1908
The petition in this canse, which is one for injunctive relief, is quite long, hut the purport of the action is to enjoin and restrain the defendant from the desecration of a public graveyard, and the graves therein. The plaintiff has a number of immediate relatives buried in the graveyard in dispute, and in 1905, went to the premises with material to replace the fences around it, when he was prevented from so doing; by the defendant who owns the body of land from which the graveyard was originally carved and taken. For some time the defendant had been pasturing his stock on this graveyard, along with the other land owned by him. The evidence tends strongly to show the following facts: That in 1860 one James B. Tracy, the father of the present plaintiff, was the owner of the north half of section 10, township 62, range 24, Grundy county, Missouri. In the spring of 1860 James B. Tracy and his son staked off about one-half acre of this land for a burying ground or graveyard. ' The spot selected adjoined a public road. The outside fences of the farm, which had been previously built in 1859, formed the fence on one side, and a gate-way was made for the public to enter. In a year or two thereafter the other three sides were fenced so that it was entirely cut off from the remainder of the farm. The first interment was the child of plaintiff’s brother in February, 1860. From that time on some ten members of the James B. Tracy family were buried there, the last being a daughter in 1878 or 1879. These bodies, including that of James B. Tracy, who died in 1868, are yet on this spot of ground. Anybody who desired used this graveyard. Others buried there until some eighteen to twenty graves appeared. One outside of the Tracy family was buried there shortly after the Tracy girl in 1878 or 1879'. The evidence shows that' the public had the privilege to bury there and did bury there until about this last-mentioned date. About this time a new
Defendant by answer claims title to this half acre of ground not only by this chain of title, but further pleads the ten-year Statute of Limitations. The evidence tends strongly to show that at the time the elder Bittle purchased the land the fences, although out of repair, to a considerable extent, were yet around this ground. That they remained there for some three or four years thereafter. Defendant’s evidence tended to show that the graveyard had been in his enclosure, unfenced, and used by him, under claim of title thereto, for more than ten years. It also tended to prove that no work had been done on the graveyard by the Tracys or the public for twelve or more years. Trial was had before the court. Defendant asked a number of declarations of law, some of which were given and some refused, but this being an equity case we shall not. burden this opinion with the same.
The trial court, after hearing all the evidence, found that in January, I860, James B. Tracy, father
From this judgment, being unsuccessful in his motion for new trial, the defendant appealed. Points made and the contentions of parties,-so far as may be required, will be noted in the course of the opinion.
This sufficiently states the case for the present.
I. To our mind the gist of this action is to restrain a desecration of a graveyard and the graves therein; and incidentally the title to the.property is involved. The case may be shortened by determining the interests of the parties in and to this plot of
II. That the use of grounds for burial purposes is and may be a public use we take it is unquestioned. In 5 Am. and Eng. Ency. Law (2 Ed.), 784, it is said:
Can there be a common law dedication of lands to such use in this State? "We think so. The general "rule is stated in 6 Cyc. p. 714, thus: “Land may be dedicated to the public for use as a cemetery. And one who has dedicated land as a public cemetery, the dedication having been accepted, is estopped from denying it. To constitute a dedication of land for a cemetery it is not necessary that any conveyance be made, or that there be any person capable of taking a conveyance otherwise than in trust. A dedication may arise out of the conduct of the owner and the acts of those who rely thereon.”
In this State in the case of Campbell v. Kansas City, 102 Mo. 339, Mastín, Special Judge, uses this language: “It is clear from the testimony in the record that the original proprietors never devoted this land to the use of a graveyard by any instrument of writing, in the form of deed or plat, sufficient to comply with the requirements of the law relating to the transfer of interests in real estate. It, therefore, follows that the legal fee must remain still in the original proprietors or their legal representatives. But the actual use of land may be devoted to public purposes without deed or writing of any character. Proof of such devotion may consist of acts in pais going to show that the owners intend to donate the use for a public purpose, and that the public has accepted and used it for that purpose. The estate thus parted with does not extend beyond the use of the land, leaving the
In the case at bar we do not have the plat, but we do have the proprietor staking off and fencing the ground, and putting in a gate on that side which adjoined a public road. This tends to show that it was open to the public. Had he intended it for a private graveyard, he most likely would have placed the gate within his general enclosure.
A very similar cáse to the one at bar, although not so strong in facts, is the case of Davidson v. Reed, 111 Ill. l. c. 170, where the court said: “James Mc-Eniglit originally owned the southwest quarter of section 21, township 10, range 10, east, in Cumberland county. The burying ground is located •near the south
In the ease at bar one of the deeds of record in defendant’s chain of title contained a reservation, so that neither he nor his grantor, the father, can well disclaim such a notice as would have at least put them upon inquiry.
Fully as strong and pointed as the foregoing cases are the following: Baker v. Vanderburg, 99 Mo. l. c. 393; Boyce v. Kalbaugh, 47 Md. 334; Hayes v. Houke, 45 Kan. 466; Redwood Cemetery Assn. v. Bandy, 93 Ind. 246 ; Pierce v. Spafford, 53 Vt. 394; Hunter v. Trustees, etc., 6 Hill (N. Y.) 407.
In the present case we conclude that there can be a valid common law dedication and that the facts amply show that Tracy and all of his successors in the title, until the title reached the Bittles in 1889, consented to and acquiesced in the use of the ground by the public as and for a public burying ground, and that the same was accepted and used by the public as such, which acts make a good common law dedication. [Baker v. Vanderburg, and other cases, supra.]
III. The evidence is not so clear upon the question of adverse possession of ten yeárs by defendant. Certain admissions of his were proven tending to show that the adverse possession might not have extended back more than two years.' But conceding that defendant, three or four years after the. elder Bittle purchased in 1889, did remove the remains of the old fences and cleared off the brush and thereafter used the ground in question as he used his other ground, and claimed title thereto, yet this does- not deprive the public of the beneficial use thereof for a public purpose consistent with the dedication.
That such lands are of that character is fully recognized by section 6, art. 10, of the Constitution, where they are exempted from taxation. We conclude therefore that the defendant’s plea of the Statute of Limitations can not avail him in this case. [See Williams v. St. Louis, 120 Mo. 403; Brown v. City of Carthage, 128 Mo. 10; Railroad v. Baker, 183 Mo. 312; City of Columbia v. Bright, 179 Mo. 441.]
IY. Is this the proper action? Is the plaintiff a proper party to maintain it? These questions are both pressed for our consideration. The general rule, supported by a long list of adjudicated cases, is thus stated in 6 Cyc., p. 720: “While there is no light of property in a dead body in the ordinary sense of the term, it is regarded as property so far as to entitle the next of kin to legal protection from unnecessary disturbance and wanton violation or invasion of its place of burial. Equity has jurisdiction to enjoin an unwarrantable disturbance or interference with a burial ground or-the graves therein.”
In the Boyce case, supra, the Supreme Court of Maryland has well said: ‘ ‘ The complainants, who are relatives of the dead deposited therein, may invoke the remedial power of the court, to prevent the desecration of the ground where repose the ashes of their kindred. The material facts of this case, both as to the' subject-matter and the competency of the complainants to maintain their suit, are analogous to the case of Beatty & Ritchie v. Kurtz, decided by the Supreme Court of United States in 2 Peters 566. It was there held not to be a case for the redress of a mere private trespass: the property dedicated to public and pious uses threatened with desecration — the sepulchres of the dead with violation — the sentiment of natural affection of the surviving kindred and friends of the deceased to be wounded, the memorials erected by piety and love removed, so as to leave no traces of the last home of their ancestors to those visiting the spot in future generations, were acts that could not be redressed'by the ordinary process of law. The remedy must be sought in the protecting power of a court of
The plaintiff having near relatives buried in this graveyard has a peculiar right in the maintenance of this public use, and in preventing an obstruction to the public use. In such case he can maintain the action and injunction is the remedy. [Longworth v. Sedevic, 165 Mo. 221.]
That citizens having an interest in the maintenance of a public use can maintain a suit to enforce their rights is fully recognized in the recent case of State ex rel. Titus v. Railroad, 206 Mo. l. c. 258, and cases cited.
Y. Has there been an abandonment of this graveyard? We think not. The idea of abandonment has been most elegantly expressed by Beardsley, J., in Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) l. c. 414, wherein he says: “What right, if any, may hereafter arise in favor of those who can make titles from the original owners, it is not necessary now to inquire. The land is still a public graveyard, inclosed, known, and recognized as such. When these graves shall have worn away; when they who now weep over them shall have found kindred resting places for themselves; when nothing shall remain to distinguish this spot from common earth around, and it shall be wholly unknown as a graveyard; it may be that some one who can establish a good ‘paper title,’ will have a right to its possession; for it will then .have lost its identity as a burial ground, and with that, all right founded on the dedication must necessarily become extinct.”
In Kansas City v. Scarritt, 169 Mo. l. c. 484, 485, a case wherein the city had passed an ordinance forbidding further interments in a burying ground, on the «question of abandonment, Sherwood, J., tersely said:
“This contention, as will be observed, assumes*318 that the mere prohibition of fntnre burials in itself worked an abandonment, but there can be no such magic in the simple declaration of a legislative intent, especially when it is not accompanied by any act of performance, or any other act of notification, as above indicated, to the reversionary owners. A cemetery is none the less a graveyard because further interments in it become impossible. It only loses its character as a resting place of the dead when those already interred are exhumed and removed. Notwithstanding the ordinance of 1857, the graves were undisturbed until 1866, and not until 1878 were all of the bodies removed from the premises. ’ ’
In the ease at bar most of those buried there are yet there. It is true that for some years no new interments have been made, but it is still the resting place of the dead. To this plaintiff and others sacred memories are awakened in viewing the spot. They cluster around the little half-worn mounds there. It is true that for some years this ground has not been kept in a condition commensurate with these memories. The vicissitudes of life sometimes may have been such as, for awhile, to make them forget these sacred memories, but such forgetfulness does not authorize the desecration of the graves of their loved ones, by strange hands. They have a right to return to the spot and, as it were, bury their forgetfulness, and do homage to their sacred memories, by placing these resting places in proper and appropriate condition and if there is a public burying ground, as in this case, no strange hand can forbid them.
Under the facts and the law this graveyard has not as yet been abandoned.
YI. Although this is a public burying ground, and although it has not been abandoned, yet the decree in this case is too broad. This decree says “that the defendant has no right, thereto” and in this the chancel
There is thus drawn a distinction between lands-conveyed by deed for a valuable consideration, and lands merely dedicated to a public use. In the latter-class of cases, if there comes a time when the bodies are all removed, or when by other conditions a clear abandonment of the graveyard is made apparent, then the right of the public, which is somewhat in the nature of an easement, ceases, and the land reverts to the-original owner or his grantees. By mere ceasing to-.make further interments does not abandon the graveyard, as we have seen, so long as it is kept in condition to be known and is known as a burying ground. The defendant in this case has no right to the possession of these grounds so long as they are kept and maintained as a burying ground. The public has the-beneficial use thereof. The defendant has a reversionary interest. He holds the fee subject to the use aforesaid. The finding and decree should be modified in accordance with these views, and we will and do so modify said judgment here, in accordance with the views-herein expressed.
The judgment so modified is affirmed.