Clark v. Coburn

• Citation: 78 A. 1107,108 Me. 26
• Parties: CLARK v. COBURN.
• Decision Date: 20 February 1911
• Court: Supreme Judicial Court of Maine (US)

78 A. 1107

108 Me. 26

CLARK

v. COBURN.

Supreme Judicial Court of Maine.

Feb. 20, 1911.

Syllabus by the Court.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Adelbert I. Clark against Jacob Coburn. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Trespass quare clausum fregit alleging that the defendant broke and entered the plaintiff's close in the town of Greene, and there trod down, trampled upon, and spoiled the grass there growing, etc. Plea, the general issue with brief statement alleging "that he entered upon the land described in the plaintiff's writ at the time alleged in said writ as the employé and agent of the Valley Cemetery Company, a duly organized corporation, which company was then and there rightfully and legally in possession of said land by virtue of proceedings taken by it and the municipal officers of the town of Greene, in compliance with the statutes of Maine, to enlarge its cemetery or burying ground within said town of Greene, and that it and said municipal officers had done all acts required by law prior to said alleged trespass to place said cemetery corporation in the rightful possession of said land, and the said defendant further alleges that the sum awarded as damages for the taking of said land, viz., $400, was duly tendered to the plaintiff in gold, but was by him refused, and said $400 was brought into court on the first day of the term to which the plaintiff's writ was returnable."

The case was heard by the presiding justice without a jury, with the right of exceptions. The presiding justice ruled that the defendant had not shown a justification for his entry, and rendered judgment for the plaintiff, with damages assessed at $1.

Argued before EMERY, C. J., arid BIRD, WHITEHOUSE, SAVAGE, and SPEAR, JJ.

John A. Morrill, for plaintiff.

Tascus Atwood and Newell & Skelton, for defendant.

EMERY, C. J. The statute, Rev. St. c. 20, § 8, as amended by chapter 60 of the Public Laws of 1907, provides that "the municipal officers of any town may on petition of ten voters enlarge any * * * incorporated cemetery or burying ground within the town by taking the land of adjacent owners," etc. In the town of Greene was a cemetery known as the Valley Cemetery, established and administered by the Valley Cemetery Company, a corporation. This cemetery was bounded on the northwest by the southeast line of a county road which was some 55 feet wide. The municipal officers of Greene upon petition under the statute essayed to enlarge this cemetery by taking land of the plaintiff situated upon the opposite side of the county road.

The plaintiff, besides other objections, objects that, as to the land sought to be taken, he was not an "adjacent owner" within the purview of the statute, since the land was separated from the cemetery by a strip of land 55...