Tracy v. Bittle

• Citation: 112 S.W. 45,213 Mo. 302
• Parties: NATHAN R. TRACY v. WALTER BITTLE, Appellant
• Decision Date: 03 July 1908
• Court: United States State Supreme Court of Missouri

112 S.W. 45

213 Mo. 302

NATHAN R. TRACY v. WALTER BITTLE, Appellant

Supreme Court of Missouri, First Division

July 3, 1908

Appeal from Grundy Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.

Modified and affirmed.

Hall & Hall for appellant.

(1) Injunction will not lie to prevent defendant from continuing in possession nor to restrain him from preventing plaintiff from fencing or exercising any other control over the land. Smith v. Jameson, 91 Mo. 13; Echelkamp v Schrader, 45 Mo. 505; Weigel v. Walsh, 45 Mo 560; Crenshaw v. Cook, 65 Mo.App. 264; Graham v Womach, 82 Mo.App. 624; Powell v. Canaday, 95 Mo.App. 513; Jerome v. Ross, 7 Johns. Ch. 315; Carney v. Hadley, 32 Fla. 344; McGregor v. Min. Co., 14 Utah 47; Lacassagne v. Chapuis, 144 U.S. 119. (2) If this is a public graveyard, as alleged, then the plaintiff cannot maintain this action; the title is in the public, and not in plaintiff. Smith v. Gardiner, 12 Ore. 221; Gause v. Perkins, 3 Jones Eq. 178; Bolster v. Catterlin, 10 Ind. 118; Jerome v. Ross, 7 Johns. Ch. 334; Cooper v. Hamilton, 8 Blackf. 378; Millan v. Ferrell, 7 W.Va. 229; Smith v. Pettingill, 15 Vt. 84. (3) Although James B. Tracy may have staked off the land in controversy for a graveyard and permitted the public to use it as such, this at most gives but a license or privilege to be used only so long as the place continued to be used as a burial ground. 5 Am. and Eng. Ency. Law (2 Ed.), 789; Page v. Symonds, 63 N.H. 17, 56 Am. Rep. 481; Craig v. First Presbyterian Church of Pittsburgh, 88 Pa. St. 42; Windt v. German Reformed Church, 4 Sandf. Ch. 471. A grant of a lot in a cemetery is said to be analogous to a grant of a pew in a meeting house and the right of burial in a public burying ground in some respects resembles the right of pew tenancy. Jones v. Towne, 58 N.H. 462; Sohier v. Trinity Church, 109 Mass. 21; Kincaid's Appeal, 66 Pa. St. 411. (4) If plaintiff had any remedy at all for the acts complained of, it was not by injunction, but trespass on the case. Kincaid's Appeal, 66 Pa. St. 411, 5 Am. Rep. 380; Craig v. First Presbyterian Church of Pittsburg, 88 Penn. St. 42, 32 Am. Rep. 423; Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409; Meagher v. Driscoll, 99 Mass. 28, 96 Am. Dec. 759; Bassemer, Land and Imp. Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26. (5) Although James B. Tracy may have measured off and dedicated the land in controversy as a public graveyard, it was without a deed; the dedication only created a license to bury in the public, which was restricted to be the right of burial, the fee remained in the owner and passed to defendant by the several conveyances. Rutherford v. Taylor, 38 Mo. 315; Campbell v. Kansas City, 102 Mo. 326; Kansas City v. Scarritt, 159 Mo. 471. (6) Even though plaintiff ordinarily might have had some right in an action in trespass for the disturbance of the graves of his deceased relatives, such right was by reason of his kinship and inheritance alone. Jackson v. Congregation of Children of Israel, 108 Ga. 518; Day v. Beddingfield, Noy 104; Spooner v. Brewster, 3 Bing. 136; Sabin v. Harkness, 4 N.H. 415; Matter of Brick Presbyterian Church, 6 Edw. Ch. 155; Mitchell v. Thorne, 134 N.Y. 536; Pierce v. Proprietors, etc., 10 R. I. 227. (7) Whatever right or interest plaintiff or public may have in the premises claimed had been barred by the Statute of Limitation long before commencement of this suit. R. S. 1899, secs. 924, 4262, 4266; Harbison v. School District, 89 Mo. 184; Ozark Plateau Land Co. v. Hays, 105 Mo. 151; Heinemann v. Bennett, 144 Mo. 113; Benne v. Miller, 149 Mo. 236; Stevens v. Martin, 168 Mo. 410; Kansas City v. Scarritt, 169 Mo. 483; Brewing Co. v. Payne, 197 Mo. 429.

S. S. Kelso, Harber & Knight and O. N. Gibson for respondent.

(1) The statutory method of dedicating lands to public uses has never been held to be exclusive; common law dedication is valid and effectual for every purpose, since the statute, as before. Campbell v. Kansas City, 102 Mo. 326; Baker v. Vanderburg, 99 Mo. 378; Rose v. St. Charles, 49 Mo. 509; McKee v. St. Louis, 17 Mo. 184; Cramer v. Allen, 3 Mo.App. 545. (2) When an unequivocal offer by the owner and acceptance by the public appear, the title passes, and no writing or other formalities are necessary, nor is any definite period of user by the public required. Railroad v. Railroad, 190 Mo. 254; McGrath v. Nevada, 188 Mo. 107; Pierce v. Chamberlin, 82 Mo. 618; Stacy v. Miller, 14 Mo. 478; Board of Regents v. Painter, 102 Mo. 464; Heitz v. St. Louis, 110 Mo. 618; Bauman v. Boreckeler, 119 Mo. 189. (3) It is only when the public claims premises by adverse possession, alone, without assent by the owner, that adverse user must be shown to have continued for the statutory period. Field v. Mark, 125 Mo. 502; Rosenberger v. Miller, 61 Mo.App. 422; Railroad v. Railroad, 190 Mo. 254; McGrath v. Nevada, 188 Mo. 107. (4) "A cemetery is none the less a graveyard because further interment in it becomes impossible. It only loses its character as a resting place of the dead when those already interred are exhumed and removed." Kansas City v. Scarritt, 169 Mo. 485; Goode v. St. Louis, 113 Mo. 257; Campbell v. Kansas City, 102 Mo. 226; State v. Culver, 65 Mo. 607; 6 Cyc. 715. (5) Title by adverse possession cannot be acquired in lands dedicated to public uses. R. S. 1899, sec. 4270; Williams v. St. Louis, 120 Mo. 403; Railroad v. McGee, 75 Mo. 522, affirmed 115 U.S. 469; St. Louis v. Railroad, 114 Mo. 13; Brown v. Carthage, 128 Mo. 10; Railroad v. Smith, 170 Mo. 327; Railroad v. Baker, 183 Mo. 312; Railroad v. Totman, 149 Mo. 657; City of Columbia v. Bright, 179 Mo. 441. (6) And land dedicated to the public for burial purposes is within this statute. Contitution, sec. 6, art. 10; Campbell v. Kansas City, 102 Mo. 345; State ex rel. v. Wesleyan Cemetery, 11 Mo.App. 570. (7) Injunction is the proper and only adequate remedy for one who is injured in his individual rights by the obstruction of a public use. Longworth v. Sedevic, 165 Mo. 221; Cummings v. Trans. Co., 156 Mo. 28; Monroe v. Crawford, 163 Mo. 178; Corby v. Railroad, 150 Mo. 457; Sherlock v. Railroad, 142 Mo. 172; Downing v. Dinwiddie, 132 Mo. 92; Palmer v. Crisle, 92 Mo.App. 510; Shepherd v. May, 83 Mo.App. 272; Dubach v. Railroad, 89 Mo. 483; Lockwood v. Railroad, 122 Mo. 86; Lytle v. James, 98 Mo.App. 387; Downing v. Corcoran, 112 Mo.App. 345.

GRAVES J. Valliant, P. J., absent.

OPINION

GRAVES, J.

The petition in this cause, which is one for injunctive relief, is quite long, but 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 cemetery was laid out in the neighborhood known as the Martin graveyard. This one was called the Tracy graveyard. Several of the bodies buried in the Tracy grounds were removed to the Martin grounds. In 1865 Tracy and wife deeded the farm by warranty deed to one Naglespaugh. In 1868 Naglespaugh and wife conveyed the farm by warranty deed to Adam Briegle, but the deed contained these words "except one-half acre reserved for a public burying ground." In 1875 Adam Briegle and wife deeded, without reservation, to their son Valentine Briegle. In 1888 Valentine Briegle reconveyed to Naglespaugh, and in 1889 Naglespaugh conveyed to Henry Bittle, father of the present defendant. In 1896 Bittle conveyed to his two sons, Walter and Alexander, and in 1899 Alexander conveyed his half interest to Walter. No reservations appear in any of the deeds except the one mentioned hereinabove.

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...