Kelly v. Tiner

• Decision Date: 20 March 1912
• Citation: 74 S.E. 30,91 S.C. 41
• Parties: KELLY et al. v. TINER.
• Court: South Carolina Supreme Court

74 S.E. 30

91 S.C. 41

KELLY et al. v. TINER.

Supreme Court of South Carolina

March 20, 1912

Appeal from Common Pleas Circuit Court of Darlington County; S.W. G Shipp, Judge.

Suit by Elias Kelly and another against John Tiner. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

The following is the complaint, demurrer, order, and exceptions referred to in the opinion:

"Complaint.

"The plaintiffs, complaining of the defendant, allege:

"(1) That the old 'Kelly Cemetery' is a plot of land in Darlington county, situated on the public road leading from Hartsville to Timmonsville, containing two (2) acres of land, and is bounded on the east by the said public road leading from Hartsville to Timmonsville and fronting thereon one acre; and is bounded on all other sides by lands of the defendant John Tiner; and is now being used and has been used for many years as a public burying ground.

"(2) That from plaintiffs' best knowledge, information, and belief, said knowledge, information, and belief having been obtained from the oldest inhabitants in the neighborhood, about 80 or 90 years ago, one Jacob Kelly, a large landowner of that neighborhood, set apart and gave to the public the two acres of land hereinbefore described as a public burying ground, and from that time until now the said two acres of land thus set apart, given, and dedicated to the public by the said Jacob Kelly has been known as the 'Kelly Cemetery,' and has been used exclusively by the public all these years exclusively as a burying ground. That the said two acres, after having been given and dedicated to the public, as aforesaid, and for the purposes aforesaid, was cut off and separated from the rest of the tract of land by rows of trees, the public at large taking possession of the same, and has ever since kept peaceable, continuous, and uninterrupted possession of the same, caring for it, cleaning it off, keeping the graves in good condition, and putting a wire fence around the graves to keep the cattle from trampling upon and desecrating this sacred spot.

"(3) That these plaintiffs are grandsons of the said Jacob Kelly, who originally set apart and gave the said two acres of land aforesaid for the purposes hereinbefore stated, and that these plaintiffs can remember for 50 years that the said two acres, known, as aforesaid, as the 'Kelly Cemetery,' was then owned and possessed by the public as a place to bury the dead, and no member of the Kelly family, as heir at law of the said Jacob Kelly, or any other person, prior to the acts of the defendant hereinafter stated, ever dreamed of laying claim to any part or parcel of the said two acres, or did any of

them ever attempt for all these years to exercise any acts of ownership over the same, except to bury their dead and aid and assist the public at large in keeping clean and in good order the said cemetery.

"(4) That these plaintiffs are residents of that neighborhood, and have been throughout almost their entire lives, and from information received from the very oldest citizens of the community they are informed and believe that at the sale of the said lands of the said Jacob Kelly at the courthouse door in Darlington it was publicly stated that these two acres, known as the 'Kelly Cemetery,' were excepted, it being the property of the public, and these plaintiffs have personally known all of the owners for the past 50 years of the tract of land from which the said two acres was cut off nearly a hundred years ago, and at no time did either or any of them lay any claim to any part or parcel of the same, or exercise, either publicly or privately, any acts of ownership over the same, except to bury their dead and aid and assist the public in preserving and keeping intact the said two acres of land for the exclusive and sole purpose of burying the dead, and at all times did the owners of said original tract of land own and admit, publicly and privately, that they did not own or possess any part or parcel of the 'Kelly Cemetery,' but that the same belonged to the public for the purpose of burying the dead.

"(5) That these plaintiffs are the grandsons and heirs of the said Jacob Kelly, and are now and have been citizens of that community almost during their entire lives; that they, with the rest of the public, have had peaceable, open, notorious, hostile, continuous, and uninterrupted possession of the said two acres of land, known as the 'Kelly Cemetery,' as aforesaid, for more than 50 years; that their parents, grandparents, and great-grandparents and other kindred, for nearly a hundred years, have been buried in this cemetery; that each of these plaintiffs have children buried there; that they expect, if the ruthless hand of its desecrator and destroyer, should be stayed, that this sacred spot shall be the burial place of these plaintiffs, their children, grandchildren, etc., on down through the corridors of time.

"(6) That on the days of February, March, April, and May of 1909 the defendant John Tiner, unlawfully, willfully, and wantonly burnt down the posts, holding the wires around the graves, cut down and destroyed most of the large trees, planted by hands long since dead and buried in the same graveyard, cut down and destroyed some of the grass, shrubbery, etc., on the said two acres, ploughed up into large beds a part of the land, and threatens to continue to commit the aforesaid depredations, and if he is not prohibited these plaintiffs verily believe that he will continue to thus illegally and unlawfully trespass upon this property, cut down and destroy the remainder of the old trees, the old landmarks, as aforesaid, and will continue to destroy the shrubbery, mutilate the posts, and make the said two acres, the old 'Kelly Cemetery,' unfit for the purposes of burying the dead--the only use it has been dedicated to for the past 80 or 90 years.

"(7) That if the defendant be allowed to continue his acts of trespass and depredations, as aforesaid, these plaintiffs will be irreparably injured, and these plaintiffs verily believe from the defendant's past conduct, his threats, etc., that he does intend to continue his illegal, willful, and wanton acts until the old graveyard is made a cotton patch or cornfield.

"(8) That these plaintiffs have no adequate remedy at law, and unless the court restrains and enjoins the defendant from any further illegal, willful, and wanton trespasses and depredations, as aforesaid, these plaintiffs will be irremediably and permanently injured and damaged, and the aforesaid 'Kelly Cemetery' forever destroyed, so that these plaintiffs and the community at large be deprived from burying their dead in the old family graveyard, and these plaintiffs desire that an injunction be issued, restraining and enjoining any further acts of trespass upon the aforesaid land, known as the old 'Kelly Cemetery,' by the defendant, his agents and servants, or by any other party or parties, acting for him or by his authority.

"Wherefore the plaintiffs pray judgment against the defendant, that the said defendant, his agents and servants, and all persons acting under his authority and direction, be perpetually and permanently enjoined from entering upon or trespassing in any way upon the said two acres of land above described, and known as the old 'Kelly Cemetery,' and from mutilating, cutting down, and destroying any of the posts, trees, shrubbery, etc., standing upon the said two acres of land, known, as aforesaid, as the old 'Kelly Cemetery,' and for the costs and disbursements of this action, and for such other and further relief as to the court doth seem just and proper."

"Grounds of Demurrer.

"(1) Because there is no allegation that the alleged acts of ...