Mayor v. Watson

• Decision Date: 18 June 1894
• Citation: 29 A. 487,50 N.J.L. 667
• Parties: MAYOR, ETC., OF CITY OF NEWARK v. WATSON et al.
• Court: New Jersey Supreme Court

29 A. 487

50 N.J.L. 667

MAYOR, ETC., OF CITY OF NEWARK

v. WATSON et al.

Court of Errors and Appeals of New Jersey.

June 18, 1894.

(Syllabus by the Court.)

Error to the supreme court.

Ejectment by the mayor and common council of Newark against George Watson and the Trustees of the Second Presbyterian Church of Newark. Judgment for defendants, and plaintiffs bring error. Affirmed.

Joseph Coult, Howard Hayes, and Cortlandt Parker, for plaintiffs in error. J. R. Emery, F. W. Stevens, and Thos. N. McCarter, for defendants in error.

VAN SYCKEL, J. The writ of error in this case brings up for review the judgment of the supreme court in an action of ejectment brought by the mayor and common council of the city of Newark against George Watson, as tenant, and the Trustees of the Second Presbyterian Church of Newark, as landlords, to recover the possession of a small parcel of land in the city of Newark, which is part of a lot situate at the southeasterly corner of Broad and Market streets, in said city, and was originally designated as the "Old Burying Ground." This, with other lands, was conveyed by the proprietors of the province of East New Jersey, by deed dated December 10, 1696, to John Curtis, John Treat, Theophilus Pierson, and Robert Young, to have and to hold to them, their heirs and assigns forever, to the only proper use, benefit, and behoof of the "old settlers of the town of Newark, for a burying ground, and to be appropriated for no other use or purpose whatsoever." On the 7th of June, 1753, George the Second granted a charter to the First Presbyterian Church, by which the society was incorporated under the name of the "Trustees of the First Presbyterian Church in Newark," with power to hold and convey lands. The town records of the town of Newark, under date of March 12, 1760, shows the following resolution: "Whereas, David Young, of Hanover, Morris county, is thought by some to be heir at law of our parsonage patents, as he is the heir of Robert Young, the oldest patentee, it is thought by some proper that this vote be put whether the Trustees of the First Presbyterian Church at Newark shall apply to said David Young for a deed of conveyance to them in trust, that the said trustees may be the better enabled to be guardians for the same for said church." This vote was accordingly put, and the resolution unanimously passed. Prior to this time, a meeting house had been erected upon a part of the lands conveyed by the proprietors' deed, and Robert Young, who had survived the other trustees named in said deed, was also deceased, leaving the said David Young, his oldest son and heir at law, surviving him. In pursuance of said resolution, David Young, on the 13th of March, 1760, executed a deed for a certain portion of said lands to the Trustees of the First Presbyterian Church of Newark. The Trustees of the First Presbyterian Church of Newark, by deed dated March 24, 1827, conveyed the same premises to the defendant the Trustees of the Second Presbyterian Church of Newark. The plaintiffs deny that these deeds embrace the locus in quo. In my judgment, this contention is not well founded. The deed of March 13, 1760, describes lot 7 as "that small tract, allotted for the burying place, taking in the pond and meeting house." From this statement it appears that the meeting house was erected on the burying place, and that it was intended that the said conveyance should include the locus in quo. It is also clear that such was the understanding of the framer of the act of 1825. This, however, is not material in the view which will be taken of this case. There is no doubt that the grantees in these deeds, as well as the inhabitants of the town, assumed that the title to the locus in quo passed by the deeds, as it is incontestably shown that from April 22, 1784, the premises in question have been occupied by tenants under leases from the First Church up to March 24, 1827, and since that date by tenants under leases from the Second Church.

On the 15th of February, 1804, the legislature passed an act entitled "An act to vest in the inhabitants of the township of Newark, in the county of Essex, a certain estate now in the hands of trustees." The first section of this act provided that the trust estate vested in the trustees named in the proprietors' deed of the 10th of December, 1696, should henceforth cease, and be void. The second section provided that the estate vested by said deed in the said trustees should be vested in the inhabitants of the township of Newark, as incorporated by law, and their successors, forever; and that they should be vested with the legal title as fully and absolutely as though they had been originally named in said deed in the place of said trustees; "provided also that nothing herein contained shall in any way extend to or affect the parsonage lands contained and particularly described and expressed in said grant; and also such parts of the burying ground mentioned and described in said grant as have either been leased or sold by the Trustees of the First Presbyterian Church in Newark previous to the first day of January last; and also the ground on which the market in said town of Newark now standeth." The lot of which the locus in quo is part was leased by the Trustees of the First Presbyterian Church to David Baldwin, April 22, 1784. By an act of the legislature passed November 4, 1825, the Trustees of the First Presbyterian Church were authorized to convey said lands in fee to the Trustees of the Second Presbyterian Church, and under and by virtue of that act the deed of March 24, 1827, was made to the latter church. At a town meeting held April 13, 1829, it was resolved that no more interments should be made in the old burying ground. On the 3d of March, 1848, the legislature passed an act which is of controlling importance in this case, the title of which is "An act requiring the mayor and common council of the city of Newark to protect and keep in repair the old burying ground in said city, and quieting the possession of such parts of said burying ground as are already occupied." The preamble recites as follows: "Whereas the old burying ground of the city of Newark hath for years ceased to be used as a place for burying the dead; and whereas it has so occurred by lapse of time, that a portion of the land originally allotted for the purpose of a burying ground, lying adjacent to the premises now designated by enclosures as the old burying ground, has been appropriated for other purposes, and has been improved for the most part by erecting thereon expensive buildings; and whereas it hath been insisted that the portion of said ground appropriated and occupied otherwise than for a burying ground should be restored to the use for which it was originally set apart, and according to the trust to which it is alleged the same is subject, which would be attended with great inconvenience, and subject innocent purchasers to great pecuniary loss, and be of no public utility, inasmuch as the location of said ground renders it improper and inexpedient to make any further interment therein; and whereas it is desirable that the said burying ground, enclosed as aforesaid, should be protected, and that the occupancy...