Tracy v. Bittle

• Decision Date: 30 May 1908
• Citation: 213 Mo. 302,112 S.W. 45
• Parties: TRACY v. BITTLE.
• Court: Missouri Supreme Court

112 S.W. 45

213 Mo. 302

TRACY v. BITTLE.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. DEDICATION—ACCEPTANCE—CEMETERY.

The owner of a farm in 1860 staked off about a half acre adjoining a public road for a burying ground. The outside fence of the farm formed a fence on one side. A year or two afterwards the other three sides were fenced, and a gate was made leading to the road. By 1879 about 10 members of the family were buried there. The general public also were allowed to bury there, so that there were 18 or 20 graves in the tract. In 1865 the farm was deeded to one H., who in 1868 deeded it to B., "except one-half acre reserved for a public burying ground." By other conveyances without any reservation the land came to defendant. In 1889 the fences, though out of repair, were yet around the tract, and remained for three or four years thereafter. Held, that there was a common-law dedication of the tract to the public as a public burying ground, and it was accepted and used by the public.

2. SAME — PURPOSES OF DEDICATION — LAND FOR CEMETERY—COMMON-LAW DEDICATION.

Land may be dedicated to the public for a cemetery, and a common-law dedication is sufficient, which upon acceptance precludes the owner from his former rights over the land.

3. LIMITATION OF ACTIONS—CONSTRUCTION OF LAW—LAND DEDICATED AS PUBLIC CEMETERY.

Land dedicated to the public for use as a cemetery is dedicated for a public or charitable use and is within Rev. St. 1899, § 4270 (Ann. St. 1906, p. 2344), providing that nothing contained in any statute of limitations shall extend to lands given to any public, pious, or charitable use.

4. DEDICATION — GRAVEYARD—DESECRATION— REMEDIES—PARTIES.

A person having near relatives buried in a graveyard dedicated to the public for burial purposes has a peculiar right in its maintenance for the public use and in preventing an obstruction to the use, and may maintain a suit to enjoin an unwarranted interference with it.

5. SAME—ABANDONMENT.

A cemetery was not abandoned where most of the bodies buried there had not been removed, and it was still known as a burying ground, though no further interments were made, and the place had been allowed to remain uncared for.

6. SAME—EFFECT—REVERSION.

Where land has been dedicated to the public for cemetery purposes, if there be an abandonment of the graveyard, the right of the public, which is in the nature of an easement, ceases, and the land reverts to the original owner or his grantees.

Appeal from Circuit Court, Grundy County; G. W. Wanamaker, Judge.

Petition by Nathan R. Tracy against Walter Bittle to enjoin the desecration of a public graveyard. Decree for plaintiff, and defendant appeals. Modified and affirmed.

Hall & Hall, for appellant. S. S. Kelso, Harber & Knight, and O. N. Gibson, for respondent.

GRAVES, J.

The petition in this cause, which is one for injunctive relief, is quite long, but the purport of the action is to enjoin and restrain the defendant from the desecration of a public graveyard and the graves therein. The plaintiff has a number of immediate relatives buried in the graveyard in dispute, and in 1905 went to the premises with material to replace the fences around it, when he was prevented from so doing by the defendant, who owns the body of land from which the graveyard was originally carved and taken. For some time the defendant had been pasturing his stock on this graveyard, along with the other land owned by him. The evidence tends strongly to show the following facts: That in 1860 one James B. Tracy, the father of the present plaintiff, was the owner of the N. ½ of section 10, township 62, range 24, Grundy county, Mo. In the spring of 1860 Jas. B. Tracy and his son staked off about one-half acre of this land for a burying ground or graveyard. The spot selected adjoined a public road. The outside fences of farm, which had been previously built in 1859, formed the fence on one side, and a gateway was made for the public to enter. In a year or two thereafter, the other three sides were fenced, so that it was entirely cut off from the remainder of the farm. The first interment was the child of plaintiff's brother in February, 1860. From that time on some 10 members of the Jas. B. Tracy family were buried there; the last being a daughter in 1878 or 1879. These bodies, including that of Jas. B. Tracy, who died in 1868, are yet on this spot of ground. Anybody who desired used this graveyard. Others buried there until some 18 to 20 graves appeared. One outside of the Tracy family was buried there shortly after the Tracy girl in 1878 or 1879. The evidence shows that the public had the privilege to bury there, and did bury there until about this last mentioned date. About this time a new cemetery was laid out in the neighborhood known as the "Martin Graveyard." This one was called the "Tracy Graveyard." Several of the bodies buried in the Tracy grounds were removed to the Martin grounds. In 1865 Tracy and wife deeded the farm by warranty deed to one Haglespaugh. In 1868 Haglespaugh and wife conveyed the farm by warranty deed to Adam Briegle, but the deed contained these words, "except one-half acre reserved for a public burying ground." In 1875 Adam Briegle and wife deeded, without reservation, to their son, Valentine Briegle. In 1888 Valentine Briegle reconveyed to Haglespaugh, and in 1889 Haglespaugh conveyed to Henry Bittle, father of the present defendant. In 1896 Bittle conveyed to his two sons Walter and Alexander, and in 1899 Alexander conveyed his half interest to Walter. No reservations appear in any of the deeds except the one mentioned herein above. Defendant, by answer, claims title to this half acre of ground, not only by this chain of title, but further pleads the 10-year statute of limitations. The evidence tends strongly to show that at the time the elder Bittle purchased the land, the fences, although out of repair to a considerable extent, were yet around this ground; that they remained there for some three or four years thereafter. Defendant's evidence tended to show that the graveyard had been in his inclosure, unfenced, and used by him, under claim of title thereto for more than 10 years. It also tended to prove that no work had been done on the graveyard by the Tracys or the public for 12 or more years. Trial was had before the court. Defendant asked a number of declarations of law, some of which were given and some refused, but, this being an equity case, we shall not burden this opinion with the same. The trial court, after hearing all the evidence, found that in January, 1860, James B. Tracy, father of plaintiff, set apart and dedicated to public use the half acre (fully describing it in the judgment and finding) for a public burying ground. The finding and judgment then proceeds in this language: "That the same had ever since been used for a burying ground and several bodies, including a number of plaintiff's relations, buried therein until about the ______ day of April, 1905, at which time plaintiff and others entered upon said land with material and were proceeding to inclose same with a fence, at which time the defendant, who owned the lands of which said tract of land so dedicated had formed a part, forbid and prohibited the plaintiff and said others from fencing the same, claiming the same as his own, and denying the right of plaintiff and the public to use the same as a burying ground. It is therefore ordered, adjudged, and decreed by the court that said ground is a public burying ground, and that defendant has no right thereto, and that he and all persons claiming under or through him be, and they are, forever enjoined and prohibited from preventing the improvement or use of said land by plaintiff or the public as a burying ground. It is further ordered and adjudged that the plaintiff have and recover of the defendant his costs in this suit expended, taxed at ____ dollars, and that he have therefor execution." From this judgment, being unsuccessful in his motion for new trial, the defendant appealed. Points made and the contentions of parties, so far as may be required, will be noted in the course of the opinion. This sufficiently states the case for the present.

1. To our mind the gist of this action is to restrain a desecration of a graveyard and the graves therein, and incidentally the title to the property is involved. The case may be shortened by determining the interests of the parties in and to this plot of ground first, and, with that end in view, we discuss that question first. That old man Tracy staked off this tract of land for public use as a burying ground in 1860 is abundantly shown. That the public, outside of the Tracy family, did so use it from 1860 to 1878, is thoroughly established. That it was fenced off to itself in 1889, when the elder Bittle bought the place, and for several years thereafter, is well established. That the remains of the old fence, marking the line, existed at the date of trial, is shown, notwithstanding the fact that defendant had pastured his stock over the ground and cleared the brush therefrom. That every owner of the premises up to the time of the Bittles recognized that this ground in dispute was a public burying ground is thoroughly shown. The evidence does not stop by showing that Tracy merely permitted certain members of the public to bury there, but it goes further, and to the extent of showing that the ground was and could be used by the public generally, and to this end was fenced to itself, with a gateway from the public highway into the graveyard. There is ample evidence in this record to show a common-law dedication of this tract of ground to the public as a public burying ground, and that it was accepted and used by the public. The leading questions then are: Can a public graveyard be established by a common-law dedication; and, if so, can adverse title thereto be acquired under the statute of limitations, so long as the...