Bitter v. Couch.

• Decision Date: 29 October 1912
• Court: West Virginia Supreme Court
• Parties: Bitter v. Couch.

71 W.Va. 221

Bitter

v.Couch.

Supreme Court of Appeals of West Virginia.

Submitted February 15, 1911.

Decided October 29, 1912.

1. Cemeteries Dedications Public Use.

Ground conveyed to an incorporated town, for the use of the town as a graveyard, and dedicated by the town to the public use as such, and so used by the public, is held in trust by the town for the public for burial of the dead. (p. 223).

2. Same Conveyance to Town Trusts Sale by Town.

Ground is conveyed to an incorporated town to be held by it for a burial place for the public. Th town accepts the conveyance and devotes the ground to public use for burial, and it is so used by the public, and many dead bodies are interred therein. Without legislative authority the town cannot sell and convey the land and thus disable itself from executing the trust of maintaining such burial place. (p. 228).

3. Charities Charitable Use Cemeteries.

A trust by conveyance of land to an incorporated town for public use as a burial place for the dead is not void because of indefiniteness as to the beneficiary, (p. 230).

4. Cemeteries Unlawful Removal Injunction.

Kindred of the dead may maintain a suit in equity to enjoin the unlawful removal of the remains of such dead from their

graves. (p. 223).

Williams, Judge, dissenting).

Appeal from Circuit Court, Kanawha Connty.

Bill by George Bitter and others against George S. Couch and others. Decree for plaintiffs, and defendant Couch appeals.

Affirmed.

Brown, Jackson & Knight, for appellant.

Price, Smith, Spilman & Clay and Mollohan, McClintic & Mathews, for appellees.

Brannon, President:

Charleston was incorporated in 1794 as a town. In 1831 Daniel Euffner made a deed to the president, recorder and trustees of Charleston forever "for use of said town as a graveyard or a place of interment for said town," a lot of one acre of ground. The deed contained a covenant that if at any time the said corporate body should cease to exist, or become incapable of holding said lot of ground, then said Euffner and his heirs shouhf "stand seized to the use of said town of Charleston or the inhabitants thereof." The deed contained the covenant that the "parties of the second part for themselves or successors do covenant with said Daniel, his heirs and assigns, to keep the said lot of ground, suitably enclosed, and separate from the other land of the said Daniel." The deed reserved to Euffner a small part of the lot as a private cemetery "arid as

containing the bones of his parents."

The town took possession under the deed, and enclosed the lot, and allowed its use for a graveyard for the public from 1831 to 1872. It made no sales of lots, nor written permits for burial. The public used it for burial by license from the town. It was the only public burial place owned by the municipality until 1870, when the town established a cemetery in a different location, called Spring Hill Cemetery. In 1872 the old graveyard ceased to be used for burial. Hundreds of bodies in the long space of forty years had been buried in the old graveyard. Some fifty were removed to the new cemetery; but there remained hundreds in the old cemetery, and sleep there yet. Until 1865 most of the dead of Charleston were buried there. The city took no steps to remove them. No one did. It passed no order forbidding burial there. In it were many monuments and tombstones, and some iron railings enclosing some of the graves. After establishing the new cemetery the city still controlled the old cemetery by fencing and cleaning it up; but it suffered it to grow up in briers and brush, and it became in bad condition in appearance.

In 1898 George S. Couch made a proposal to the city council to buy this acre for $1,000.00.

On the 20th January, 1898, the council of Charleston passed an order reciting that the said lot "is not now nor has been for many years nor ever will be again used as a burial ground and is therefore no longer of any use to the said city; and whereas said lot is at constant expense to maintain in presentable condition, and is moreover made a rendezvous for immoral purposes," and reciting the offer of Couch to purchase. The order accepted the proposition of Couch, and directed a deed to him; on the next day a deed was made to him and he paid the $1,-000.00 consideration. In April, 1898, George Ritter, James F. Lewis, Julia E. Petty and Dulce Rowena Laidley brought the present suit against Couch, the city of Charleston and heirs of Daniel Ruffner, for the purpose of annulling the deed from the city of Charleston to Couch, and to declare void the action of the council selling the lot to Couch, and to enjoin them from attempting to remove, transfer or obliterate in any way the graves of the relatives of the plaintiffs. The plaintiffs had for many years been residents of Charleston, and had buried in the said graveyard many blood relatives, fathers, mothers, sisters and brothers. The case ended in the circuit court of Kanawha county in a decree holding as illegal the sale of the lot to Couch, and vacating the deed from the city to Couch, and enjoining the defendants from removing or attempting to remove or interfere with, or obliterate the graves of the relatives of the plaintiffs, or the stones or monuments marking them.

The right of the plaintiffs to maintain this suit is questioned. It is said that the plaintiffs or their families never purchased any lots in the graveyard, or had any other right beyond a naked license. It is very certain that the city acquired the lot for burial purposes; that it took possession of the lot and enclosed it and controlled it as a burial ground; that it permitted through many years the burial of the dead in it; and thus it is clear that it received this lot and dedicated it to public use for the burial of the dead. Nothing is wanting on the part of the city to show that it consecrated and dedicated the lot for the burial of the dead. The kindred dead of the plaintiffs lie in that old pioneer graveyard under this dedication and consecration. The municipality of Charleston acquired this property for public use, and devoted it to this use, a legitimate public use, as the burial of the dead is indispensable. Land so acquired by a municipality for such purpose and dedicated, is a dedication to a pious and charitable use. Hopkins v. Grimsliaw, 165 IT. S. 342; Evergreen Cemetery v. City of New Haven, 21 Am. R. 643. In the last named case the court said: "All must be regarded alike as consecrated to a public and sacred use. The idea of running a public street regardless of graves, monuments and the feelings of the living, through one of our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity." These authorities say that the dedication is irrevocable no matter that there is no purchase of lots or grave places. The city allowed entrance to the dead without let or hinderance. It is said, furthermore, as an argument against the right of the plaintiffs to sue, that Couch does not propose to disturb the graves of the dead. Perhaps not now; but he was careful to insert in the deed from the city to him a provision limiting the right of the city or any person to four months from the date of the deed to enter the lot for the purpose of removing the dead, and declaring that such entry could not be made afterwards. Couch claims that under his deed he has absolute title in fee to the lot unencumbered of any trust, and the right to dispose of it. What is to prevent him or his heirs or alienees at any time in the future from removing the dead? Couch has dry legal title, and if that be not charged with the trust, there is no guaranty that the dead will not be removed, and if the kindred of the dead may not call upon a court to save their last resting places from invasion, Couch cannot be stopped from so doing by any mere declaration of Couch, based on no consideration, the deed containing no covenant not to invade the graves. This commercial age betokens that trade will at some future time forget the dead reposing there. It has been debated in this case as to the character of the deed from Euffner to Charleston. It has been questioned whether it is a deed with a subsequent condition, *or an absolute conveyance of the fee simple without such condition. Does the fact that the lot has ceased to be used for interment, or its transfer by the town, forfeit the estate of the town and revert the land to Euffner heirs? I cannot see that this question is material. If the town has lost its title, and the lot has reverted, I do not see that it would help the plaintiffs. They would not get title thereby. But it may be material as showing, against Couch, that it is not his power to remove the dead. I do not think that the deed from Euffner conveys the estate upon condition. I think it conveys an absolute legal title. It mentions no condition of forfeiture. It mentions no forfeiture as long as Charleston is capable of holding. Forfeitures are not favored by equity. It takes very plain language to create a forfeiture in courts of equity. Equity does not enforce forfeiture. I think the principles stated in Brown v. Caldwell, 23 W. Va. 187, will sustain me in saying that Couch took an absolute fee simple estate, without forfeiture condition. And, therefore, unless that estate, be charged with a trust, Couch could at any time remove these dead.

Can the kindred of the dead interfere for their protection? Can they call upon equity to do so? In Beatty v. Kurtz, 2 Peters 566, Justice Story said: "This is not the case of a mere private trespass, but a public nuisance going to the irreparable injury of the Georgetown congregation of Lutherans; and the property consecrated to their use by a perpetual servitude or easement, is to be taken from them.-; the sepulchres of the dead are to be violated; the feelings of religion and the sentiments of natural affection of the kindred and friends of the...