Campbell v. City of Kansas

• Decision Date: 30 June 1890
• Parties: Campbell et al. v. The City of Kansas, Appellant
• Court: Missouri Supreme Court

13 S.W. 897

102 Mo. 326

Campbell et al. v. The City of Kansas, Appellant

Supreme Court of Missouri

June 30, 1890

Appeal from Johnson Circuit Court. -- Hon. N. M. Givan, Judge.

Affirmed.

W. J Ward for appellant.

(1) To recover in ejectment the plaintiffs must have an absolute right of possession as against the whole world. (2) Defendant's first instruction should have been given because the undisputed testimony showed that a large number of people had been buried in the ground in controversy, and that the larger part of them are buried there yet, and that all of them had been buried in the square in controversy after it had been expressly dedicated by its owners for the purposes of a graveyard. Stockton v. City of Newark, 9 A. 203; Hunter v. Trustees, 6 Hill (N. Y.) 407; Boyce v. Kalbaugh, 47 Md. 334; Trustees v Walsh, 57 Ill. 363; Brendall v. Ref. Con., 33 Pa. St. 415. (3) Defendant's first instruction should have been given as the evidence showed a dedication forever as against the original proprietors and those claiming under them. Bayard v. Hargrove, 45 Ga. 342; Mayor v Franklin, 12 Ga. 239; Leffler v. City of Burlington, 18 Iowa 361; City of Dubuque v. Maloney, 9 Iowa, 450; Wyman v. Mayor, 11 Wend. 486; Alton v. Transportation Co., 12 Ill. 38; Carter v. City of Portland, 4 Oregon, 339. (4) If the city has violated the purpose for which the land was dedicated the remedy is in equity to restore it to its proper use. The city cannot sue for its recovery. Barclay v. Howell, 6 Pet. 498; Carter v. City, 4 Oregon, 439. (5) The land being dedicated for a graveyard the only right the city could have was to regulate its use; it could not destroy it as a graveyard either by selling it or using it for other public purposes; and only having the right to control it for the purposes for which it was given, it could not deprive the citizens of the right to hold it as a graveyard, and defendant's second instruction should have been given. Price v. Thompson, 48 Mo. 361; Stockton v. City of Newark, 9 A. 203; Commonwealth v. Rush, 14 Pa. St. 186; Warren v. Mayor, 22 Iowa 351; Le Clercq v. Trustees, 7 Ohio 218; Hunter v. Trustees, 6 Hill, 407. (6) Defendant's third instruction should have been given for the reasons last above given. (7) Defendant's fourth instruction should have been given. Stockton v. City, 9 A. 203; Hunter v. Sandy Hill, 6 Hill (N. Y.) 407; Boyce v. Kalbaugh, 47 Md. 334; Trustees v. Walsh, 57 Ill. 363; Brendall v. Ref. Con., 33 Pa. St. 415; Louisville v. Nevin, 10 Bush. 549; State v. Wilson, 94 N.C. 1015; R. S. 1879, sec. 1573. (8) Defendant's fifth instruction should have been given. (9) Defendant's sixth instruction should have been given. Hunter v. Sandy Hill, 6 Hill, 407. As to what constitutes a dedication see Price v. Breckenridge, 92 Mo. 378; Price v. Breckenridge, 77 Mo. 447; Cincinnati v. Lessee of White, 6 Pet. 431; Mayor v. Franklin, 12 Ga. 239; Dubuque v. Maloney, 9 Iowa, 450; Bayard v. Hargrove, 45 Ga. 342; Carter v. City of Portland, 4 Oregon, 339; City of Alton v. Trans. Co., 12 Ill. 38; Bartlett v. Bangor, 67 Me. 460. (10) People being buried in this ground under the dedication as made, their remains have a right to remain there forever as against the plaintiffs; and defendant's sixth instruction should have been given. Stockton v. City of Newark, 9 A. 203; Brendall v. Ref. Con., 33 Pa. St. 415; Trustees v. Walsh, 57 Ill. 363; Mayor v. Franklin, 12 Ga. 239; Wyman v. Mayor, 11 Wend. 486; Bayard v. Hargrove, 45 Ga. 342; City of Alton v. Trans. Co., 12 Ill. 38; City of Dubuque v. Maloney, 9 Iowa, 450; Leffler v. Burlington, 18 Iowa 361.

C. O. Tichenor also for appellant.

(1) The dedication was sufficient. Gridley v. Hopkins, 84 Ill. 534; Smith v. Town, 64 Ill. 96; Rowan v. Town, 8 B. Monroe, 234; Kainie v. Harty, 73 Mo. 316; Trustees v. Walsh, 57 Ill. 368. Mere acquiescence for twenty years unaccompanied by any act which repels the presumption of such intention to dedicate is conclusive evidence of abandonment to the public. Wood v. Hard, 34 N. J. L. 91. (2) Courts have everywhere regarded with favor the repose of the dead. They have been careful to secure their sleep from disturbance. Commissioners v. Church, 30 Kan. 620; Seymour v. Page, 39 Conn. 653; Swasey v. American, 57 Me. 524; Dexter v. Gardener, 7 Allen, 247; 2 Perry on Trusts, sec. 706; Meagher v. Driscoll, 99 Mass. 284; Pierce v. Swan, 10 R. I. 227; Patterson v. Patterson, 59 N.Y. 585; Reg. v. Stewart, 12 Ad. & El. 773; Weed v. Walker, 130 Mass. 422; Thompson v. Hicky, 59 How. 434; Kavan's Case, 1 Me. 205. (3) The graveyard was an appurtenance of value to purchasers of lots in the addition. Abbott v. Mills, 3 Vt. 527; 8 B. Mon. 235; Grogan v. Town, etc., 6 Sawyer, 498; Davidson v. Reed, 111 Ill. 167. (4) The evidence does not show an abandonment of the land as a graveyard. Seymour v. Page, 33 Conn. 65; Lake View v. Rose Hill, 70 Ill. 195.

Scarritt & Scarritt and Gates & Wallace for respondents.

(1) It is admitted that the original owners of the ground in controversy never signed or acknowledged the map or plat of 1847, upon which "Land 21" (the ground in controversy) appears as being marked, "Donated for graveyard." The legal title, therefore, of said land remained in said owners, and the dedication, if any, grew out of the use of said ground by the public as a burying ground. In order to constitute a statutory dedication and pass the fee to the county, the requirements of the statute must be strictly complied with. R. S. 1845, p. 1056, sec. 6; R. S 1855, p. 1536; United States v. Railroad, 2 Biss. 177; Banks v. Ogden, 2 Wall. 68; People v. Beaulein, 2 Doug. (Mich.) 270; Lessees v. Mehrenf'd, 8 Ohio St. 444; Reid v. Board, etc., 73 Mo. 304; City v. Stookey, 23 Ill. 442; Baker v. City, 8 Minn. 491; Putnam v. Walker, 37 Mo. 600; Emmons v. City, 32 Wis. 434. (2) An owner of land, who dedicates or donates the same to the public for a specific use, has the right of possession to such property, and the right to use the same in any manner not inconsistent with the public use or purpose for which it was dedicated. Therefore, the plaintiffs in this suit holding, as it is admitted they do, the legal title to the ground in dispute, have a right to the possession of the same, subject to the use, even though it should be admitted that the use for which it was dedicated is still in effect and full force. And the action of ejectment against one who holds the exclusive possession of the property, as the city does in this case, is the proper remedy. Gidney v. Earle, 12 Wend. 98; Hancock v. Wentworth, 5 Met. 446; Robbins v. Borman, 1 Pick. 122; Harris v. Elliott, 10 Pet. 55; Alden v. Murdock, 13 Mass. 255; Crain v. Fox, 16 Barb. 184; Jackson v. Hathaway, 15 Johns. 452; Pomeroy v. Mills, 3 Vt. 279; San Francisco v. Calderwood, 31 Cal. 587; Armstrong v. City, 69 Mo. 309; Lawe v. City, 35 N.W. 563. (3) The jury in this case found, as a fact, under proper instructions, that the ground in controversy had been abandoned as a graveyard by the public, and those interested in its use as such, and that it had been put to other and entirely different uses; and that the city had entered upon and was and is holding the exclusive possession thereof; denying the right of possession to these plaintiffs who hold the legal title, and also denying the right of the public to use the ground as a graveyard by the passage of laws prohibiting its use for that purpose. The use for which the ground was dedicated having been abandoned by the public, and the city (whose claim to possession has no more force than that of any other stranger to the title) being in exclusive possession of the property, the right of plaintiffs to a judgment for possession is absolute and complete. And the instructions given by the court, of its own motion, defining abandonment, are in harmony with and fully supported by the authorities. Price v. Thompson, 48 Mo. 365; Warrer v. Mayor, 22 Ia. 351; Commonwealth v. Bowman, 3 Barr. (Pa.) 206; Still v. Trustees, 16 Barb. 107; Cincinnati v. White's Lessees, 6 Pet. 187; Wash. on Eas. [2 Ed.] 178; McWilliams v. Morgan, 61 Ill. 89; Trustees v. Council, 33 N. J. L. 19; Board v. Edson, 18 Oh. St. 226; Carter v. City, 4 Or. 348. (4) Referring to claim of defendant that land in dispute must remain forever subject to the use for which it was dedicated, notwithstanding the abandonment. Appeal of Gumbert, 1 A. 438; 110 Pa. St. 496; Society v. Dugan, 5 A. R. (Md.) 420; 65 Md. 460; Reed v. Stouffer, 56 Md. 254; Schlessinger v. Mallard, 11 P. 728; 70 Cal. 326; Weisenberg v. Truman, 58 Cal. 63; Mayor v. Stockton, 14 A. R. (N. J.) 630; Craig v. Church, 88 Pa. St. 42; Kincaid's Appeal, 66 Pa. St. 411. (5) Ejectment is the proper remedy in this case. Jones v. DeLassus, 84 Mo. 541; Gardiner v. Tisdale, 2 Wis. 153; Tillmes v. Marsh, 67 Pa. St. 512; Morgan v. Moore, 3 Gray, 319; Gidney v. Earle, 12 Wend. 98; Hancock v. Wentworth, 5 Metc. 446; Robbins v. Borman, 1 Pick. 122; Pomeroy v. Mills, 3 Vt. 279; Perley v. Chandler, 6 Mass. 456. (6) Defendant's possession is such as will enable plaintiffs to maintain ejectment. Anderson v. City, 47 Mo. 486; Hammerslough v. City, 57 Mo. 221; Armstrong v. City, 69 Mo. 311. (7) Defendant had authority to "vacate" the land in dispute as a graveyard, and prohibit further burials thereon and remove the graves as it did, and perform other similar acts, in the exercise of its police powers. Sess. Acts. 1852-3, p. 244; Sess. Acts. 1850-1, p. 91; City of Charleston v. Church, 4 Strob. (S. C.) 306; Church v. New York, 5 Cowen, 538; Mayor v. Slack, 3 Wheeler's Crim. Cas. 256; 1 Dillon on Mun. Corp. [3 Ed.] sec. 372; Coates v. Mayor, 7 Cowen, 585; Bailey v. Culver, 84 Mo. 531. (8) The sale of lots by the owners thereof referring to map of 1847 for descriptions did not...