Campbell v. City of Kansas

• Decision Date: 30 June 1890
• Citation: 102 Mo. 326,13 S.W. 897
• Parties: CAMPBELL et al. v. CITY OF KANSAS.
• Court: Missouri Supreme Court

13 S.W. 897

102 Mo. 326

CAMPBELL et al. v. CITY OF KANSAS.

Supreme Court of Missouri.

June 30, 1890.

DEDICATION — CEMETERY — ABANDONMENT — EVIDENCE.

1. A square was marked "donated for graveyard" on an original plat, not signed or acknowledged by the proprietors of a town-site, but filed with the recorder of titles by one of them, who soon after used it at a public sale of lots. The plat, and the use of the land for interments, were acquiesced in by the proprietors. Held sufficient evidence of a dedication in pais.

2. The donors of land dedicated to a city for a grave-yard have, while the public use lasts, no right to a concurrent possession subject to a reasonable use by the public, and cannot maintain ejectment against the city to recover such a possession.

3. Land dedicated to a city for a cemetery, which has no longer the character and name of a grave-yard, but is used as a public park, reverts to the donor, who may recover in ejectment against the city, which in defense denies the abandonment.

4. In such case the question will not be considered whether the land can be appropriated and used for other charitable purposes, germane to the original one, in accordance with the equitable doctrine of cy pres.

5. In 1857 land, in a city, dedicated and used as a cemetery was by ordinance "vacated for graveyard purposes." In 1866 the council, by published notice, required all who had friends buried there to move the remains. Many removals were made, but the majority of the remains were left to be taken away by the city. In 1869 it was used by the workhouse force, breaking rock. In 1870 earth was taken from it, and used to fill a street. In 1877 the city engineer was instructed by ordinance "to grade the old grave-yard, and get it into shape for a public park." This was done the next year. The grading went below all the graves, except, perhaps, a few in the low part, on which four to ten feet of earth were placed. Trees were planted, grass grown, and walks laid out. It was named and recognized by the city as a park. No visible grave or monument remained. During the final grading, in 1878, the removal of remains exhumed was stopped, and the bones of from 11 to 84 bodies reintered, in small boxes, as near the places from which taken as possible. Small stones, bearing numbers but no names, were at these points either put five or six inches under ground, or they had sunk to that depth at the time of the trial, shortly before which the location of many of them was brought to light, by agents of the city, by "prospecting" through the park with a sharp iron rod. Held sufficient evidence of abandonment.

BRACE, J., dissenting.

Appeal from circuit court, Johnson county; Noah M. Givan, Judge.

This is a suit in ejectment, brought in April, 1884, by John Campbell and some 30 other plaintiffs, as owners in common, against the City of Kansas, for recovery of a block of ground situated in said city, between Oak and Locust streets and Missouri and Independence avenues. The petition is in the usual form, alleging the right of possession in plaintiffs, and their ouster and dispossession by defendant. The answer, along with a general denial, contains averments of some evidential facts, admissible under the denial, to the effect that the land sued for was dedicated to the public use for grave-yard purposes, by the original proprietors of the "old town, Kansas City," in 1847; that, ever since the dedication, it has been used for grave-yard purposes; and that it is a graveyard still. The plaintiffs, in reply, after denying generally, allege that in April, 1884, the defendant filed an answer to a certain suit in the Jackson county circuit court, brought by one Nathaniel Grant, wherein the City of Kansas, defendant therein, averred that by ordinance of October 30, 1857, the land in controversy was vacated for grave-yard uses, and "that since October 30, 1857, said land has not been used for or as a grave-yard," by reason whereof it is claimed that defendant is now estopped from asserting anything to the contrary. As no judgment is pleaded, there could be no estoppel. As an adverse admission, the evidence was received. The case was taken by change of venue to the circuit court of Johnson county, where it was tried for the third time; this last trial being before his honor, Judge GIVAN, of that circuit. The trial resulted in a verdict and judgment in favor of plaintiffs, from which the defendant prosecutes its present appeal.

In order to understand the issues of law which come before us, it will be necessary to state briefly, in a general way, the leading features of the case as developed at the trial. It appears that the original proprietors of the land whereon stands Kansas City made three plats of the town-site, — one in 1839, before full acquisition of title; another in 1846 which covered only about half of the town-site; and a third one in June, 1847, which included and superseded the two previous ones, and which alone includes the land in controversy. The plat of 1847 discloses additional lots laid off for sale just north of the land in controversy and east of the lots formerly platted. It also includes, contiguous to these additional city lots, certain parcels of land, ranging from one to four acres each in extent, and numbered from 1 to 32, inclusive. The names of the respective proprietors appear on these lots as if with reference to a contemplated or accomplished partition between them, excepting lot numbered 21, which is marked on the plat as "donated for grave-yard." This plat was made by Mr. John C. McCoy, a surveyor, and a witness in the case, who was one of the original proprietors of the town-site, under whom plaintiffs claim title. It does not appear to have been signed or acknowledged by any of the proprietors. Neither was it recorded at the time, or marked "Filed," although it was deposited with the recorder of titles in 1849. Prior to 1849 there was no statute requiring town-plats to be recorded. After the statute was passed containing this requirement, this plat seems to have been recorded. At the sale which followed the making of the plat, it was exhibited to the purchasers; and deeds were made in conformity with it, and by reference to it. Prior to 1847 a very few burials had taken place on a high knoll or ridge which lay near the north-western corner of the square, extending into the street on the north side, which was not distinguished from the ground in controversy by any visible boundary at that time. After the ground was platted, in 1847, the inhabitants of the town and the vicinity continued to bury in this land, mostly on the western half, which was higher than the eastern portion, making use of the unimproved streets on the north and west for the same purpose. The burials could not have been very numerous, as the town had only about 100 inhabitants in 1847, and less than five hundred in 1857, when interments in it ceased. On the 30th October, 1857, the city council passed an ordinance vacating the land in controversy for graveyard purposes. It subsequently notified, by newspaper publication, the relatives of persons buried there, to remove their remains. The evidence relating to what was done with the land since 1857 is very voluminous, and need not be stated here in detail. In a general way, it may be stated that the city took exclusive possession of the land; that no further burials in it took place, except, perhaps, the burial of an infant; that it graded the streets surrounding it; that it leveled it off, and used it as a place for the work-house force to break rocks upon for macadamizing the street; that it graded the land, which was of an uneven surface, lying above the grade in some places from 8 to 17 feet, and below it in others; that it fenced it in, laid walks across it, with turn-stiles at the corners; that it planted it in trees, sowed it in grass, and lighted it at night; that it recognized and treated it as a park; that, by reason of its ordinances and improvements, nothing remains in or about it to indicate that it is a grave-yard. In all this the public has acquiesced.

C. O. Tichenor and W. J. Ward, for appellant. Scaritt & Scaritt, Gates & Wallace, Noble & Orrick, and H. A. Loevy, for respondents.

MARTIN, Special J., (after stating the facts as above.)

1. It appears from the evidence that Robert Campbell, William Gillis, Fry P. McGee, John C. McCoy, Henry Jobe, Jacob Ragan, and William B. Evans, as early as 1838, acquired a body of about 325 acres of land, in which is included the site of Kansas City. They became owners in common, in fee-simple, and the plaintiffs claim the land in controversy as their heirs or assigns. The right of the plaintiff to have in this suit all which the original proprietors would be entitled to were they suing, is not denied in the arguments before us. It is clear from the testimony in the record that the original proprietors never devoted this land to the use of a grave-yard by any instrument of writing, in the form of a 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 the 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 intended 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 technical legal fee in the donors, which, however, must be held by them for the donated use as long as that use continues. While the plat of 1847 could not operate to pass the fee-simple of this land to the public, or to any trustee of the public, it constitutes an important and controlling fact in the evidence to...