Hunt v. Tolles

• Decision Date: 28 August 1902
• Citation: 75 Vt. 48,52 A. 1042
• Court: Vermont Supreme Court
• Parties: HUNT et al. v. TOLLES et al.

52 A. 1042

75 Vt. 48

HUNT et al.

v. TOLLES et al.

Supreme Court of Vermont. Windsor.

Aug. 28, 1902.

Appeal in chancery, Windsor county; Start, Chancellor.

Suit between Hunt and others and Tolles and others. From a decree dismissing the bill, the orators appeal. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and STAFFORD. JJ.

William P. Dillingham and Gilbert A. Davis, for orators.

J. C. Enright, E. R. Buck, and William Batchelder, for defendants.

MUNSON, J. On the 15th day of September, 1813, William Jarvis, of Weathersfield, better known as "Consul Jarvis," conveyed "to the inhabitants of the Third and Fourth school districts in the town of Weathersfield, their heirs and assigns, forever," certain land in the town of Weathersfield, to be held by them, "the said inhabitants of said districts, their heirs, administrators, executors, and assigns," so long as the same should be improved for the sole purpose of a burying ground; reserving to himself and his heirs, executors, administrators, and assigns a lot three rods square near the center of the land described. Consul Jarvis was a resident of the Fourth district, and the land conveyed was in the same district, about a fourth of a mile from his house. A plat of ground appropriated in the lifetime of Consul Jarvis, but differing in size and location from the reservation, has been used as the family lot. The remains of Consul Jarvis, of his son Maj. Charles Jarvis, and of other members of the family, rest in this lot, surrounded by the graves of their neighbors who have been buried there from time to time since the deed was given. The bill is brought by a daughter and granddaughters of Consul Jarvis, who are inhabitants of the Fourth district, in behalf of themselves and any others, inhabitants or heirs, who may desire to be joined, and alleges a defacement of the cemetery by the improper cutting of trees and shrubbery, and prays that all further cutting be enjoined, and that the defendants be ordered to pay such sum as will restore the cemetery as nearly as possible to its former condition, and for such other and further relief as the court can give. The defendants are the first selectman of Weathersfield and persons who acted under him in doing the work complained of. most of whom were inhabitants of said districts, and had relatives buried in the cemetery. The answer alleges that the cemetery had been almost entirely neglected for many years, and had become unsightly from an overgrowth of trees and bushes, and that the work in question was undertaken at the request of the inhabitants of said districts, and was intended to improve and beautify the cemetery. Speaking generally, the cemetery lies in the angle formed by the intersection of the turnpike and the road leading west from the turnpike to Jarvis' Mills. The description in the deed begins at a stake in the north side of the road about 10 rods west of the turnpike, and continues by courses and distances without further mention of existing boundaries; the first course being to the west. The line returning to the first bound runs along the top of a bank at the bottom of which the turnpike is located. In 1850 Consul Jarvis deeded to some grandsons a tract of land, which, as described, surrounded the cemetery, reserving the use of it during his life. In 1805—which was after Consul Jarvis' death, and while the title was in some of his descendants—strips adjoining the cemetery on the east, west, and south were added to it by moving out the boundary walls and extending them to complete the inclosure. The addition on the east included the bank just referred to. Since then lots have been taken and interments made on these additions, the same as upon the original grant. Nothing further appears in regard to this enlargement. We think the findings are sufficient to show a dedication of this additional land to the purpose to which the original grant was devoted by the terms of Consul Jarvis' deed, and that no distinction should be made between the original cemetery and the additions as regards title or control. It does not appear that any one claimed or assumed control of the cemetery, nor that there was any supervision of it, prior to 1866. At a meeting of school district No. 4 held in March of that year one Haskell was elected sexton "as far as the district has a right to," and this choice was ratified later in the year at an informal meeting held in the country, and participated in by persons who had been engaged in making the improvements hereafter referred to. Mr. Haskell served as sexton until 1884, when he was succeeded by Henry W. Sheldon, as to whose authority nothing appears. Sheldon served until about 1890, and was then succeeded by Sylvester W. Jones, who has since acted. It appears from parol evidence that Jones was elected sexton at a meeting of district No. 4, but there is nothing regarding an election in the records. He has had no other appointment. The town has never chosen cemetery commissioners, and no vote of the town in regard to this cemetery is shown. The selectmen had a meeting In October, 1898, when the necessity of clearing up this and other cemeteries in the town was discussed. This meeting was attended by defendant Wilson and another member of the board, the third member having been duly notified. The result of this meeting was an understanding that Wilson should proceed and do the work as he thought proper. He thereupon caused to be read from the pulpit of the church in the neighborhood of the cemetery, at a regular Sabbath service, a notice requesting those interested in the improvement of the cemetery to meet at the cemetery for that purpose. The acts complained of were done by those who assembled in pursuance of this call. Very little is shown as to the care and condition of the cemetery during the first 40 years of its existence. It may be inferred from the fact that Consul Jarvis himself occasionally turned sheep into it to be held for washing in the river near by that not much had been done for its improvement or ornamentation. In 1805 it was largely overgrown with bushes and small trees. At this time Mrs. Richards, a daughter of Consul Jarvis, inaugurated a movement for its improvement, and secured assistance in money and team work from the people of the two districts generally. The bushes and small trees were cut, the grounds graded, driveways laid out, and a suitable entrance erected. Fir trees, pines, and maples were procured and set out in suitable places. The trees removed by the defendants from the interior of the cemetery were mostly trees set out or selected for preservation at this time. From 1866 to 1898 there was no systematic care of the grounds. Some lots were partially cared for, and some grass and bushes were cut annually by the sexton and volunteer assistants. Occasionally a tree was cut by the owner of the lot upon which it stood. Sometimes, before a funeral, drooping limbs that...