94 N.J. Eq. 686 | New York Court of Chancery | 1923
James Van Boskerk, whose will was probated December 27th, 1823, died seized of a large tract of land, situate at Constable Hook, in what is now the city of Bayonne, on which he resided. Included within his homestead lot, and a few hundred feet from his mansion house, was the Van Boskerk family burial ground, about an acre in extent. By his will, dated September 8th, 1823, he devised all his real estate, with the exception “of the burying ground as it is now
John Van Buskirk (son of James), who had changed the spelling of his surname, executed and delivered to his son, John Yan Buskirk, Jr., a deed dated March 20th, 1864, recorded July'20th, .1864, in which he recited the will of his father and the devise thereby of all of said testator’s real estate, with the exception “of the burying ground as it is now enclosed” and excepting also certain other real estate, to his sons John, Nicholas and James, upon the conditions above set out and further reciting the intention of. the grantor, John Yan Buskirk, by his deed to convey the land thereinafter described, to his son John Yan Buskirk, Jr., in part as his portion according to the power given in the will of James Yan Boskerk, and then the grantor proceeded to convey to his son John, Jr., a tract of land within whose boundaries the burial ground was located, without further reference .to said burial ground.
John Yan Buskirk (son of James Yan Boskerk) died in or about the year 1869, leaving a will dated July 25th, 1864, by which he devised to his said son John Yan Buskirk, Jr., the said homestead lot of forty and eight-tenths acres (all or the major part of which he had conveyed to said son by the deed above mentioned) without referring in the description thereof to said burial ground. He added, as the final clause of his will, the following: “It is my wish and I hereby order' that the burial ground at Constable Hook, adjoining said homestead, shall not be disturbed in any man
By deed dated May 8th, 1905, recorded October 26th, 1905, John Yan Buskirk, Jr., conveyed to Charles W. Fuller, then the agent and attorney for the defendant, the burial ground in question, by the following description:
"All .and singular the land used and employed for the purpose of sepulchre and which land and premises are contained in block 256 on map above referred to and known as ‘old cemetery’ and containing one acre of land be the same more or less,”
and said Fuller, by deed dated November 1st, 1905, recorded January 20th, 1911, conveyed the burial ground, by Hie same description, to the defendant.
Under proceedings initiated and completed by the defendant prior to the deed from Yan Buskirk to Fuller, the public streets leading to the burial ground were vacated by the city of Bayonne and the defendant is now in possession of such streets as the owner thereof and also of the lands surrounding the burial ground and upon delivery of the deed from Yan Buskirk to Fuller, it took possession of the burial ground. It refuses to permit complainants to have access to the burial ground or to enter the same, except for the purpose of removing the bodies of complainants’ ancestors at a time to be agreed upon, or to be fixed by this court. Complainants are the heirs-at-law of John Yan Buskirk, Jr. (who died in 1919), the grantor to Fuller. They pray an injunction restraining the defendant from removing the remains interred in the burial ground and from desecrating or destroying said plot and for a decree that they may have a right of way over defendant’s land to and from the burial ground.
The defendant insists that by the will of James Yan Boskerk (who died in 1823), the devise of the forty and eight-tenths acre tract to his son John, was in fee and included the burial ground within that tract; that by deed dated March 20th, 1864, said son John conveyed to .his son John, Jr., in fee, a tract of land which included the burial ground
But I do not think that the issue in this case should be determined by ascertaining whether or not the • defendant can trace title to the burial ground by will and deed. The original Yan Boskerk homestead was erected late in the seventeenth century or early in the eighteenth century and the plot in question must have been used for burial purposes prior to the year 1800, because a witness speaks of two graves therein, marked by tombstones bearing inscriptions which showed that the deaths occurred in the eighteenth century. Setting apart land for burial purposes, permitting burials therein and enclosing the land by fence, amounts to- a dedication of the land and precludes the owner from exercising his -former rights therein. Whether the land was thus dedicated by James Yan Boskerk (who died in 1823), or by a former owner, does not appear; but it does appear by the recitals
I conclude that the right of burial in the cemetery still exists and extends to the descendants of James Van Boskerk (who died in 1823) for themselves, their relatives and such friends, whose surviving relatives may desire permission to inter there and that all living Van Boskerk descendants and relatives and friends of those whose bodies are interred in the cemetery have the right to visit this final resting place of their dead, for the purpose of. maintaining, caring for and protecting the remains, the graves and the grounds and are entitled to free ingress and egress to and from the public street or road nearest the cemetery over the lands owned by the defendant which surround the cemetery. The defendant will be enjoined from disturbing, altering or destroying the burial ground and from interfering with access by complainants to and upon the cemetery. If the manner of access cannot be agreed upon by the parties, application for that purpose may be made to me.
Eor the information of counsel, I will say that in reaching my conclusions I have been guided by the -following authorities:
Wormley v. Wormley (Ill., 1904), 3 L. R. A. (N. S.) 481; Roundtree v. Hutchinson (Wash., 1910), 27 L. R. A. (N. S.) 875; Hines v. State (Tenn., 1911), 42 L. R. A. (N. S.) 1138, and notes appended thereto.