Board of Com'rs of Mahoning County v. Young

• Decision Date: 26 October 1893
• Docket Number: 89.
• Citation: 59 F. 96
• Parties: BOARD OF COM'RS OF MAHONING COUNTY et al. v. YOUNG.
• Court: U.S. Court of Appeals — Sixth Circuit

59 F. 96

BOARD OF COM'RS OF MAHONING COUNTY et al. v. YOUNG.

No. 89.

United States Court of Appeals, Sixth Circuit.

October 26, 1893

Statement by LURTON, Circuit Judge:

This is an action of ejectment. The plaintiff was Charles C. Young, a citizen of the state of New York. The defendant was the county of Mahoning, one of the counties of the state of Ohio. The property involved is lot No. 96 of John Young's original plat of the village of Youngstown, upon which now stand the courthouse, jail, and county offices of Mahoning county. A jury was waived, and the cause submitted to the Honorable W. H. Taft, circuit judge, who rendered judgment for the plaintiff. Subsequently, a jury was impaneled, under the statute of Ohio, to ascertain the value of the improvements. Upon final judgment there was an appeal by the defendant to this court.

The facts necessary to be stated for the purpose of this opinion are these:

John Young, the ancestor of the plaintiff below, and the common source of title for plaintiff and defendants, signed and recorded, in 1802, a town plat of 100 lots in the township of Youngstown, then in the county of Trumbull, but now in that of Mahoning. This plat was defectively acknowledged under the Ohio statute regulating the acknowledgment and registration of town plats. The result was that the legal title to the streets, alleys, and other open public places was not vested in the village authorities, bur remained in Young. Lots Nos 95 and 96 on this plot were each marked with the words 'Burying ground.' From the date of this dedication down to 1868, these lots were used as a burying ground. In 1865 an adjoining lot owner fenced in a part of lot 95. Suit was brought against him in the name of the county commissioners, but failed upon the ground that the title was not in them. Another suit was instituted in the name of certain citizens of Youngstown for the benefit of the public. One B. F. Hoffman was counsel in this second suit for the plaintiffs. To meet the supposed difficulty about the title Hoffman procured the passage by the legislature (April 3, 1867) of an act entitled 'An act for the protection of certain graveyards and burial grounds.' The first section of this act is the only one important to this contention. It was in these words:

'That the title, right of possession and control to and in and of all public graveyards and burial grounds located within incorporated cities and dedicated by the owners, and dedicated as graveyards and burial grounds, but which have not been dedicated according to the forms and requirements of law, be and the same are hereby vested in the cities, towns and villages respectively, where any such graveyards and burial grounds may be located; and the council of such towns, cities and villages are hereby authorized and required to take possession, control and charge of all such grounds within their respective limits and protect and preserve the same, and make such ordinances, sales and regulations as may be necessary and proper for said purposes and consistent with the health and welfare of the inhabitants; and they are also authorized and required, when necessary, to institute suits in the names of said municipal corporations to recover possession of said graveyards and burial grounds, remove trespassers therefrom and recover damages for injuries thereto for any part thereof, or to any tomb or monument therein.'

Pending that suit, and after the passage of this act, Hoffman procured from the plaintiff, Charles C. Young, who was then living in Whitestown, N. Y., and in whom was vested the legal title by descent from his father, John Young, and by deeds from his brothers and sisters, a quitclaim deed to both lots 95 and 96. This deed is in these words:

'C. C. Young to Village of Youngstown.

'Quitclaim Deed.

'To all to whom these presents shall come, greeting: Know ye, that I, C. C. Young, of Geneva, in the state of New York, for divers good causes and considerations thereunto moving, especially for one dollar received to my full satisfaction of the incorporated village of Youngstown, in the county of Mahoning, in the state of Ohio, have given, granted, remised, released, and forever quitclaim, and do by these presents absolutely give, grant, remise, release, and forever quitclaim, unto the said incorporated village of Youngstown and its successors forever, to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf, all such right and title as I, the said C. C. Young, as one of the heirs, and as the assignee and grantee of the other heirs and devisees, of John Young, the original proprietor of said township and village lands, have or ought to have in and to the following described lands: Situate in the said village, and known and designated on the original plat of said village made by said John Young and recorded in Trumbull County Records of Deeds, Book A, p. 118, as burial grounds, and being inlots numbers ninety-five and ninety-six, and used as burial grounds by the citizens of said village and township since about the year 1799. Said inlot No. 95 lies on the west side of Market street, and extends westerly to inlot No. 94, and covers all the ground inclosed and used as a burial ground for over fifty years; and said inlot No. 96 lies on the east side of said Market street, and includes the grounds inclosed and used as a burial ground for a like period. To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever. In witness whereof I have set my hand and seal this 10th day of July, A. D. 1867.

C. C. Young. [L. S.]

'Signed, sealed, and executed in the presence of

'John W. Smith.

'Samuel Louthrop.'

The city council of Youngstown accepted this deed, and the suit against the trespasser was thereafter conducted in its name and in its behalf. The consideration for this deed was the sum of $15, paid to Hoffman on account of Charles Young, being a debt due from Young to Hoffman about other matters. Young required the city of Youngstown to assume this debt to Hoffman, and pay the same as a consideration for the conveyance.

In 1868 the council of Youngstown, which had then ceased to be a village and become a city, passed an ordinance by which all interments in the old burying ground were thereafter forbidden, and the remains of those already interred there, which should not be removed by friends and relatives before April 1, 1869, were ordered removed at public expense. This ordinance was executed, and all bodies removed. From that time until 1874 the lots lay open and unused. In 1874 the legislature provided that the county site of Mahoning county should be removed from Canfield to Youngstown, on condition that Youngstown should donate a lot, and erect thereon the county courthouse, jail, and offices at a cost of not less than $100,000, free of expense to the county. This condition was accepted, and by ordinance passed in 1875 it was directed that a deed in fee to said lots 95 and 96 be made to a committee of five citizens, who were constituted a building committee, charged with the duty of erecting the courthouse and other public buildings, and then making conveyance, when completed, to the county commissioners of Mahoning county. The buildings were duly erected, and in August, 1876, the lot on which they stood was conveyed to the county commissioners, and since that date have been occupied by the courts and county officers of Mahoning county. Lot No. 95 was not used by the building committee, and the title remains in that committee. The present suit involves only lot No. 96, and was begun in December, 1891.

Disney Rogers, A. W. Jones, and Geo. F. Arrel, for plaintiffs in error.

F. E. Hutchins, T. W. Sanderson, and M. A. Norris, for defendant in error.

Before BROWN, Circuit Justice, LURTON, Circuit Judge, and SEVERENS, District Judge.

LURTON Circuit Judge, (after stating the facts.)

We quite agree, upon the facts of this record, that the plaintiff's title is good, and that he is entitled to recover, if the case is to turn alone upon the effect of the common-law dedication made by John Young in 1802. The dedication under the unacknowledged plat of that year was good only as a common-law dedication. The plat was only evidence of the purpose of the dedicator with regard to lots 95 and 96. The acceptance and use by the public of them as a burying ground, taken in connection with the plat, operated as a dedication for burying purposes. This sort of dedication operated only by estoppel. The acquiescence of the owner, and that use by the public, estopped him from asserting any right of possession hostile to such use. The public acquired an easement for that purpose, and that only. This seems to be the well-settled ground upon which a common-law dedication becomes operative and effective. Fulton v. Mehrenfield, 8 Ohio St. 440; Wisby v. Bonte, 19 Ohio St. 238. The right of the public being a mere easement, the owner of the fee may resume possession whenever there has been a full and lawful abandonment of the use for which the dedication was made. The estoppel ceases to operate when the use ceases. 'The dedication,' as forcibly put by the circuit judge, 'has spent its force' whenever the use becomes impossible. This is the well-settled rule concerning public roads, streets, and alleys, when the fee remains in the owner of land over which a public road has been established. Barclay v. Howell's Lessee, 6 Pet. 498.

The result would be the same under the construction placed upon the Ohio acts of December 6, 1800, and March 3, 1831, by the court of that state. The acts referred to provide that the...