Stockton v. Mayor
| Decision Date | 19 April 1887 |
| Citation | 42 N.J.E. 631,9 A. 203 |
| Parties | STOCKTON, Atty. Gen., and others v. MAYOR, ETC., OF THE CITY OF NEWARK. |
| Court | New Jersey Court of Chancery |
Bill for injunction. On order to show cause upon bill and answer.
Cortlandt & Wayne Parker, for relators.
Joseph Coult, for defendants.
BUNYON, Ch. This suit is brought by the attorney general by information, at the relation of Henry Congar and others, and by the relators as complainants, against the mayor and common council of the city of Newark, to establish a trust in certain land in Newark known as the "Old Burying-Ground," and to restrain the defendants from removing from that land the remains of persons buried there, and to compel the defendants to keep and maintain the ground in decent and proper order, so as to protect the remains and memorials therein from desecration.
The bill states that the relators and complainants are citizens of Newark, and heirs and descendants of the old settlers of the town of Newark, and they bring suit, not only for themselves, but also for the benefit of all such other citizens, heirs, and descendants as may be made parties, and for the protection of the charitable use to which the burying-ground was, as they allege, devoted. The bill states that on the tenth of December, 1696, shortly after the settlement of the town, the proprietors of the province of East New Jersey, in pursuance of the concessions to actual settlers thereof theretofore made by them, granted to John Curtis, John Treat, The ophilus Pierson, and Bobert Young, of the town of Newark, certain parcels of land in Newark for public use, among which was a tract including the land in question, which tract is described in the deed as "all that small tract therein allotted for the burying-place, taking in the pond and meeting-house, being seven chains in length, and four in width, bounded west by John Treat, south by John Johnston, north and east by highways;" that as to that land the grant was made, and was in the deed declared to be made, to the grantees and their heirs, to the only proper use, benefit, and behoof of the old settlers of the town of Newark, their heirs and assigns, forever, in common, and that it was also therein declared that the land was granted to be and remain for the use in the deed expressed, and to be appropriated to no other use or uses whatever.
The complainants allege that the greater part of that tract was then and thereafter used for and devoted to the use of a burial-place for the people of the town, those who settled the place,—the old settlers,—and their heirs and assigns, and that it has been reserved and kept for such purpose, and has been known as the "Old Burying-Ground," and that there have been buried in it, from time to time, deceased persons, people of the town, old settlers, and their heirs and descendants, and that the memorials of such deceased persons have been erected there, and that some of them still remain; that about the fifteenth of February, 1804, the legislature of the state, for the purpose of vesting the legal estate in the property upon the same trust, and to the same use, upon and to which it had been granted, passed an act by which it was recited that the inhabitants, the first settlers of Newark, on their first settlement, after purchasing all the lands lying within the bounds of the town of the native Indians, proceeded to parcel them out among themselves, and such settlers as thought proper at various times to settle in the town according to the rules and regulations established by the first settlers respecting their admission, at the same time reserving certain portions of land in various parts of the town for public purposes; and that, doubts having arisen as to the validity of the Indian title, it was afterwards thought advisable by the inhabitants of the town to take a grant from the proprietors of East New Jersey for the confirmation of their rights to that public land, and that, as the inhabitants of the town were not incorporated, and were incapable of taking a legal estate, it was thought advisable to take the grant in the names of certain trustees for the use of the inhabitants, which grant was accordingly taken on the tenth of October, 1696, in the names of John Curtis, John Treat, The ophilus 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, their heirs and assigns, forever, in common, the lands granted, to be and remain to and for the several uses therein particularly expressed, and to be appropriated to no other use or uses whatsoever; that the original trustees were all dead, and the heir of the survivor not known to be resident in Newark, and that, through the ignorance of those infant times, the use created in the grant, although really meant for the benefit of the inhabitants of the town of Newark and their successors, yet was so inartificially expressed as to render it difficult for the then inhabitants of the town, as incorporated by law, to assert their rights to the premises, by means whereof the lands contained in the grant, and originally reserved by the first settlers for public purposes, were exposed to encroachments and other injuries, without a competent remedy therefor, either in law or equity; and it was thereby enacted that the trust-estate vested in the trustees, their heirs and assigns, forever, by the deed from the proprietors, for the onlyproper use, benefit, and behoof of the old settlers of the town of Newark, their heirs and assigns, forever, should thenceforth cease and be void, and that the estate so vested in those trustees, their heirs and assigns, forever, should be vested in the inhabitants of the township of Newark, in the county of Essex, as incorporated by law, and their successors, forever, and that they were thereby vested with the legal title thereto as fully and absolutely as though they had been originally named in the grant in the place of the original trustees, saving the rights of bona fide purchasers without notice of the trust: provided, that nothing in the act should in any way extend to or affect the parsonage lands described in the grant, or such parts of the burying-ground as had been leased or sold by the First Presbyterian Church in Newark before the first of January then last, or the ground upon which the market then stood; and it was thereby further enacted that the estate vested by the act in the inhabitants of the township should be appropriated, and forever remain, to and for the several uses in the beforementioned original patent (the deed from the proprietors) expressed, and for no other use or uses whatever.
The bill further states that in 1836 the city was incorporated, and thereupon, by force of the laws of this state, became subject to all the responsibilities of the township, and succeeded to the duties of the inhabitants of the township as trustees; that it thus obtained the legal title to the land in question, and that it was its duty to protect and preserve the property to the uses to which it was originally devoted, but that it has not only neglected its duty in that behalf, but now proposes to remove the remains from the ground, and devote the land to use as a public market, for the sale of meat and vegetables, and to let it out for hire for those...
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