Roundtree v. Hutchinson

• Decision Date: 21 February 1910
• Court: Washington Supreme Court
• Parties: ROUNDTREE et al. v. HUTCHINSON.

107 P. 345

57 Wash. 414

ROUNDTREE et al. v. HUTCHINSON.

Supreme Court of Washington

February 21, 1910

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Bill by Pat H. Roundtree and others against John Hutchinson. From a decree for plaintiffs, defendant appeals. Affirmed.

Reynolds & Stewart, for appellant.

W. W Langhorne, for respondents.

GOSE J.

This is a bill in equity to restrain the defendant from desecrating a burial ground, and to establish the right to ingress and egress. There was a decree for the plaintiffs, and the defendant has appealed.

The case presented by the record is: Was the tract of land dedicated to the public by the owner as a place of sepulture? The trial court found as a fact that: 'The declarations of consent and the conduct of Buchanan, acted upon and relied upon by the residents of Boistfort precinct from 1855 to the time of his sale to Wooley in 1884, was in fact an implied dedication of this burying ground.' Whilst the finding may more properly be termed a conclusion of law, we cannot escape the conviction that the learned trial court correctly resolved the case upon questions of both law and fact. The case developed the following facts: One Buchanan and his wife settled upon a donation claim, of which the burial ground formed a part, in 1853, and later acquired title. They continued in the possession of the land until 1884, when they conveyed to Wooley, who conveyed to the appellant in 1887. The tract in controversy was used by the entire neighborhood as a place for the interment of the bodies of the dead, with the consent of the Buchanans, from 1854 until they conveyed to Wooley in 1884. There is some evidence that they became somewhat obdurate about the year 1874, but they continued however, to consent to the use of the tract as a burial ground. About 40 bodies were buried there during this period. Some time after the appellant acquired title, he forbade the use of the ground for other interments, but offered no opposition to its retention as a resting place for the bodies already buried. However, in 1908, according to his testimony, the fences inclosing the graves having fallen, he removed and burned the fencing material, removed the tombstones, and plowed and seeded the ground. The decree recites, and it is supported by the evidence, that the appellant desecrated the graves, and denied access to the cemetery to relatives and friends of those who were buried there; that he wrongfully removed the monuments erected to perpetuate the memory of the dead, and that he wrongfully plowed over the graves.

The recited facts show an implied common-law dedication to a public use. The distinction between a statutory dedication and a common-law dedication is that the former proceeds from a grant whilst the latter operates by way of an estoppel in pais. There is no particular form or ceremony necessary in the dedication of land to a public use. An implied common-law dedication arises from some act or course of conduct from which the law will imply an intention, on the part of the owner of the property, to dedicate it to the public use. Elliott on Roads & Streets (2d Ed.) §§ 121, 123; City of Cincinnati v. Lessees of White, 6 Pet. 431, 8 L.Ed. 452. 'An implied dedication is one arising, by operation of law, from the acts of the owner. It may exist without any express grant, and need not be evidenced by any writing, nor, indeed, by any form of words, oral or written. It is not founded on a grant, nor does it necessarily presuppose one, but it is founded on the doctrine of equitable estoppel. As said by the Supreme Court of the United States, 'the law considers it in the nature of an estoppel in pais,' and holds it irrevocable. It may be established by evidence of conduct, and in many ways. In one case it was declared that: 'The authorities show that dedications have been established in every conceivable way by which the intention of the party could be manifested.' If the donor's acts are such as indicate an intention to appropriate the land to a public use, then, upon acceptance by the public the dedication becomes complete.' Elliott, Roads & Streets, § 123. The use by the public need not continue for the statutory period. 'Such use, however, ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.' City of Cincinnati v. Lessees of White, supra.

The intention of the owner to dedicate, and the period of enjoyment for the creation of a public right, depend somewhat upon the nature of the use to which the property is devoted. When the owner has, as in this case, consented to the use of a particular tract of land for a place for the interment of the dead for so great a length of time, an intention to dedicate the land to the public for such purpose will be conclusively presumed, and neither he nor those claiming title through him with notice of the use will be heard to assert the absence of an intention to devote the land to the particular use. In Ball v. Tacoma, 9 Wash. 592, 38 P. 133, the owner of a small tract of unplatted land, lying between two avenues 700 feet apart in such a position that the extension of Carr street southward to the avenue would include 43 feet of the west end of his property joined with owners of similar tracts in a petition to the city council asking that land 100 feet in width between the two avenues, which...