243 Mo. 190 | Mo. | 1912
Bill in equity seeking injunctive relief. Plaintiffs are lineal descendants of Powhatan Wooldridge who died in the year 1862. The bone of contention is the right to a tract of ground ten by thirty feet on which are the graves of the said Powhatan Wooldridge, his wife, and several of his relatives.
■The petition charges that the plaintiffs “are and have been for more than twenty years the owners and in possession of” the tract of land in dispute. The petition further avers “that said tract of land has been for more than twenty years used exclusively as a family burying ground by the plaintiffs and their ancestors. That all the graves on said ground have been during all the time since the burial of said bodies in
“Plaintiffs state that the defendant owns the land surrounding and adjoining to the said tract of land so as aforesaid described as containing the bodies of the ancestors and relatives of these plaintiffs. That these plaintiffs are desirous of. inclosing with a substantial fence the graves of their said ancestors and relatives, so as to prevent them from the intrusions and molestations of the animals and beasts that otherwise have access to them.
“Plaintiffs state that the defendant on or about the--day of March, 1907, without authority of law and in violation of the rights of these plaintiffs, removed the fences which inclose a. part of the said graves, thereby turning said graves or burial places into pasture belonging to the defendant, and used by him as a hog lot or pasture. That defendant threatens and is about to remove the fences inclosing the other graves located on said tract of land, and denies to plaintiff the right and privilege of erecting around said graves a fence or wall inclosing the same. That plaintiffs have notified the defendant of their rights in the premises, and warned him to desist from removing the said fences, and informed him that they would •erect around said graves a wall or fence inclosing the same. But the defendant refused to permit them to erect said wall or fence, and threatens to remove the fence surrounding the remainder of said graves.
“Plaintiffs state that if-they are not permitted to erect a wall or fence inclosing the said graves, and the defendant is allowed to remove the said fences now inclosing a part of said graves, they will be unprotected and exposed to the ravages and desecration of the hogs and other live stock belonging to this defendant, and that the injury and damage to plaintiffs will
“Wherefore plaintiffs pray that the defendant, his agents, servants and employees be perpetually enjoined from removing any fence or wall enclosing said graves, and from interfering with or molesting in 'any way these plaintiffs in building and erecting a wall or fence inclosing the said tract of land so as aforesaid described containing the graves of the ancestors and relatives of these plaintiffs, and for such other and further relief as to the court shall seem just and proper in the premises. ”.
The answer is (1) a general denial, (2) the Statute of Limitations for adverse and continuous possession for more than 18 years, and (3) that plaintiffs have no rights either in law or equity, because “said plot of ground has never been set apart according to law for a family burial place.”
Upon trial had, plaintiffs failed to get relief and from this adverse judgment bring the case here.
The facts are practically indisputed. Powhatan Wooldridge, mentioned supra, was the original owner of a farm of which the small tract in dispute was a part. He is the father and grandfather of those buried there, with the exception of one stranger. There are some nine graves in all. There were no tombstones, but there were markers of common field stone and the graves were fenced. In one instance three graves were inclosed within a picket fence. Other graves were separately inclosed by rail pens. No sign distinguished one grave from another. The last interment was the body of Jno. M. Wooldridge, a son of Powhatan, in about 1880. The first was in or about 1856 or 1857.
The lands of Powhatan Wooldridge went by descent to his children, and by voluntary partition was divided. The forty acres upon which these graves are
I. In the brief filed in this court the plaintiffs undertake to plant themselves behind the case of Tracy v. Bittle, 213 Mo. 302. That case was written with care after a thorough research of all the authorities. The known lax methods used in the earlier days for the establishing of public burying grounds prompted the writer to the use of diligence and care in outlining the doctrine of the law announced in that case. But that case it not this case. We were dealing there with a public graveyard, and not with a private graveyard as these plaintiffs in their petition aver this one to be. In the Bittle case we held (1) that the evidence showed that the land in dispute had been dedicated to a public use by the owner thereof; (2) that the public could acquire an interest in a graveyard by a common law dedication, as well as by deed; (3) that the Statutes of limitation had no bearing upon grounds dedicated to a public or charitable use, and that a cemetery was such a use; (4) that there was no abandonment of such public use so long as the dead remained buried therein, and
This case does not avail the plaintiffs here for two reasons. First, they do not charge the graveyard now under consideration to be a public graveyard. They aver it to be a private burial ground. Therefore, by their pleadings they have not brought themselves within the beneficent rules of the Tracy case. Secondly, their proof fails to show such acts by the older Wooldridge as would amount to a common law dedication of any particular tract of land to a public or charitable use, and the acceptance of the, same by the public. When the conceded facts of this case are fully measured up it is seen that they fall far short of showing a dedication to public use. An examination of the facts tending to show a dedication in the Tracy case, and in the other cases cited in that opinion, will demonstrate the absence of the necessary facts in the ease at bar. In this case Wooldridge marked out no plot of ground for a burial ground. He in no way attempted to segregate a burying ground from the general farm. There is practically no evidence of a dedication to the public or of an acceptance by the public. So that we conclude that both by pleading and proof, the question of a public graveyard is not in this case. If plaintiffs have any rights in the premises they must be sought from another source.
“Any person desirous of securing family burying ground or cemetery on his or her lands, may convey to the county court of the county in which the land lies any quantity of land not exceeding one acre, in trust for the purpose above mentioned, the deed for which to be recorded within sixty days after the conveyance; and such grounds, when so conveyed, shall be held in perpetuity as burying grounds or cemeteries for the use and benefit of the family and descendants of the person making such conveyance.”
This statute was first enacted in 1857, and has only been slightly changed by amendment. The lawmaking power realized that a landowner could not dedicate property for such use. It realized that such use could only be created by deed or reservation in a deed, and so impressed provided this statutory method of creating such a use. Under our statute we doubt whether á family burying ground could be established by a mere reservation in a deed, yet we need not'decide the point because not involved here. Such a reservation of course would convey the title and interest reserved to the parties for whom it was reserved, and in this way amounts to the preservation of such grounds as a graveyard. But, as said, this question need not be discussed.
The elder Wooldridge did no acts to create a public cemetery, nor did he establish a private or family burying ground in the manner pointed out by the statute. He at all times was possessed of the fee unhampered by any act of his in the premises. By this we mean any act which could be legally asserted against his grantees without express reservation in the deeds of conveyance. No such reservations appear. The title he possessed has passed to defendant. The statute as to family burying grounds not only requires a deed, but it requires the record of such instrument.
III. Another theory argued'by plaintiff, and perhaps well covered by their petition, is that they can hold possession by prescription. This presents a novel proposition. In support of it we are cited to a Kentucky case, Hook v. Joyce, 21 L. R. A. 96. In that case one Clark was the owner of certain land, when defendant’s father was buried there. Later his brother was buried there. Defendant’s mother caused tomb stones to be placed at the graves and had the same fenced. She died' and was buried at the same place. The defendant in the Hook case was the only heir-at-law of the mother, Lucinda Joyce. In 1847, the city of Paducah acquired the land upon which these graves were situated and established a cemetery. The city platted the grounds into lots, and sold the* lot upon which defendants father, mother and brother were buried, to the plaintiff Hook. Hook sued for possession and under peculiar instructions from the lower court lost the case, and appealed to the Kentucky Court of Appeals, which affirmed the judgment nisi. The court held that the defendant’s mother had an easement in the soil which had been acquired by prescription, which easement could not be defeated, but passed by descent to her heirs at law. The court further held that the possession of such easement was held by virtue of the burial of the dead therein; with properly inscribed' tomb stones. This language is used:
“But the question arises, what is the nature and extent of the adverse possession required in order to
Of this case the learned annotator of L. R. A. in a note says: “The question in the above case is a peculiar one and seems to be without exact precedent.” "We are not impressed with this case. Under the head of Cemeteries, 6 Cyc. 716, we find this statement: “No formal deed is necessary to confer the exclusive right to the use of a lot in a cemetery for burial purposes. Oral permission from the proprietors is sufficient.” An examination of the authorities cited show much diversity of opinion upon the question stated.
Following the paragraph above quoted we find this further satement: “The title to an easement of a burial lot may be acquired by prescription where adverse possession for that purpose is held for the statutory period.” In support of this latter doctrine the Hook case, supra, is cited. Following this is the generally conceded doctrine as to cemetery lots:
“The purchaser of a lot in a cemetery, though under a deed absolute in form, does not take any title to the soil. He acquires only a privilege or license to make interments in the lot purchased, exclusively of others, so long as the ground remains a cemetery. Such privilege or license is subject to the police power of the State, in the exercise of which not only future inter
Going further the same authority says: “A burial lot is regarded as property in which title may in most cases descend to heirs.”
It must be remembered that these general rules have reference to lots in established-cemeteries. To our mind there is where the Kentucky court became confused. At the date of the action the ground was in fact a cemetery, and if it were not for the recited facts as to when the bodies were buried in the lot in question, i. e., at a time prior to the establishment of the cemetery and when the ownership of the land was in Clark, we can see where the general rule above quoted might be made to apply. But from the vague statement of the facts in the opinion, we are lead to think that the court intended to hold that easement was created in favor of Lucinda Joyce upon the land, by the burial of the bodies therein- and the continued use of the lot in that way for the prescriptive time of fifteen years. If by the opinion it is meant to be held that the prescriptive term began when Clark’s land was invaded, we can not agree to the doctrine. It may be (a question we do not decide, because outside of the case in hand) that if after the Paducah Cemetery was platted persons had buried their dead in a certain lot, and the graves were readily discernible, and this use had continued for the prescriptive term, then a subsequent purchaser of the lot, who under the general rule of law only purchased a right or privilege to bury in the lot, might be precluded from the possession of lot by the holder of the prescriptive use. This assumed case is not the Hook case, as WO understand it, nor is it the case at bar.
In 14 Cyc. 1139, the essential elements of an easement are thus stated: “The essential qualities of easements are: (1) They are incorporeal; (2) they are imposed upon corporeal property and not upon the owner of it; (3) they confer no right to a participation in the profits arising from such property; (4) they are imposed for the benefit of corporeal property; (5) there must be two distinct tenements — the dominant, to which the right belongs, and the servient, upon which the obligation rests. In order to constitute an easement there must be two estates, the one giving and the other receiving the advantage, denominated respectively the servient and the dominant estates.”
But we have what is recognized in the law as rights or easements in gross. These are rights which rest upon lands in favor of a person or individual, and of course there is no dominant estate. But rights or easements of this character are not usually assignable, nor do they pass by descent. [14 Cyc. 1140.]
Viewing the law of easements from all angles we can see no remedy for these plaintiffs. There is no easement appurtenant, because no dominant estate. If a right or easement in gross it would not pass by descent and hence plaintiffs have no standing.
We have held that one having relatives buried in a public graveyard can in equity prevent the desecration of their graves. This, however, is on the theory that the land has been dedicated to a public use, and any interested party has a right to protect such public use. On the other hand, if the graves were in a family burying ground, then the rights of the parties to protect the graves are secured by the terms of the' deed required to be executed and spread of record.[Sec. 1303, R. S. 1900.]
But where neither of these conditions exist we can see no remedy. If it can be said that the Hook case from our sister State holds that the placing of a body in a grave upon the land of another, and permitting it to remain there for the prescriptive term, creates an easement by prescription, which easement will descend to the legal heirs, for all time, then we do not agree to the doctrines of that case. The bill in this case avers that defendant has denied plaintiffs all rights, except the right to remove the bodies. Of this right they had better avail themselves. To them it may
It is not the humane idea which adjudicates the rights here involved, bnt the cold law as demanded by defendant. Under the law we see no remedy for plaintiffs, and with regrets we so say. Let the judgment be affirmed.