Trustees of The First Evangelical Church v. Walsh

• Decision Date: 30 September 1870
• Citation: 1870 WL 6641,11 Am.Rep. 21,57 Ill. 363
• Parties: TRUSTEES OF THE FIRST EVANGELICAL CHURCH et al.v.MICHAEL WALSH et al.
• Court: Illinois Supreme Court

57 Ill. 363

1870 WL 6641 (Ill.)

11 Am.Rep. 21

TRUSTEES OF THE FIRST EVANGELICAL CHURCH et al.

v.MICHAEL WALSH et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion states the case.

Mr. J. V. LE MOYNE, for the appellants.

Messrs. GOUDY & CHANDLER, for the appellees.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill for an injunction to restrain appellees, officers of the town of Lake View, in Cook county, from interfering with appellants' possession and use of certain cemetery grounds therein situate.

On the 20th of April, A. D. 1860, appellants obtained, by purchase and deed, of and from one Humphreys, a conveyance to them, in fee, of the north half of the north half of the east half of the northwest quarter of section 20, town 40, north range 14, east of third principal meridian, excepting six acres on the southeast corner of the piece, previously sold, making fourteen acres conveyed. Appellants took possession, and soon after the conveyance inclosed the ground and devoted it to the uses of a cemetery, and have ever since continued such use of it. Afterwards, and on the 9th of October, A. D. 1865, they also purchased and obtained the conveyance of one Gilbert Hubbard, and wife, of a parcel of land constituting ten acres, and described in the deed as “All of block No. 4, of Laflin, Smith & Dyer's sub-division of the northeast quarter of section 20, town 40, north range 14, east of third principal meridian, with the appurtenances, &c.”

The plat of Laflin, Smith & Dyer's sub-division of the northeast quarter of section 20, was introduced in evidence. It purports to have been acknowledged by the proprietors on the 24th, and recorded on the 27th of November, 1855; but it was not, nor is it claimed to have been, made in conformity with the statute as to the mode of laying out towns and making additions thereto. No statutory effect can, therefore, be accorded to the plat.

It appears by the evidence, that block 4 lies directly east of the first mentioned parcel purchased of Humphreys, and if a certain strip along the west line of block 4, designated on the plat as Gifford street, and forty feet wide, can not be regarded as a highway, then it adjoins the other parcel on the east.

Assuming they did join, appellants, soon after their purchase of the block, united both pieces into one by inclosing them with a suitable fence, and dedicated the whole ground to public use as a graveyard. Grounds thus devoted were regarded by the civil law as “sacred, religious and holy,” and belong to no individual. Cooper's Justinian 69. And the civil law in this particular, is said by Bracton to be the common law, and it would be strange indeed that a system, based upon so accurate a theory of human nature as the common law is, should fail to recognize a sentiment so deeply seated in the human heart, and so universal in the human race, whether civilized or savage. It appears that appellees, as commissioners and overseer of highways of the town, claiming the strip in question to be a public highway, Walsh, as overseer, and accompanied by a police officer, by the direction of the commissioners, just before the filing of this bill, proceeded, in the assertion of such claim, to take down, by force, the fence across the strip, both on the north and south sides of the inclosure, to effect an entrance into and through the grounds, while at the same time the solemn rites of burial were about to be performed within, and were thereby delayed for over an hour, and the clergyman officiating was threatened with arrest if any resistance was made; and now, without any disclaimer of the right asserted, appellees insist, that even if the right were ill-founded, the act was but a simple trespass, for which there is an adequate remedy at law, and chancery has no jurisdiction.

It has been decided by the Supreme Court of the United States, in a similar case, that there is no adequate remedy at law for such an invasion, and that chancery has jurisdiction. The right asserted in that case, went to the whole grounds; here, it is to a part only, but that does not affect the question. It is upon the principle that burying places, laid out and consecrated to such use, become public immunities, or common privileges, and if the right asserted would, when carried into effect, disturb the enjoyment of those immunities or privileges, and the right itself be ill-founded, then, as such disturbance would be more than a private trespass--would be a public nuisance going to the irreparable injury of the congregations complaining-- chancery has jurisdiction to restrain its commission, and to quiet the appellants in the possession and use of their cemetery. Beatty et al. v. Kurtz et al. 2 Peters R. 566, 584; Smith v. Bangs et al. 15 Ill. 399.

What, we may ask, would be the measure of damages at law, for the wounded sensibilities of the living, in having the graves of kindred and loved ones blotted out and desecrated by common highway travel? The inadequacy of a remedy at law, is too apparent to admit of argument. The only remaining question in the case is, whether the right asserted by appellees was well or ill-founded; or, in other words, whether the strip in question was, or was not, a public highway by dedication; for no other mode of its becoming so is pretended.

The dedication is sought to be established by the plat given in evidence; the act of cutting down some trees upon the strip by one commissioner, by direction of another, claimed to be an acceptance, and certain vague evidence of user by the public. First, then, as to the plat: We have already seen, this plat was not in conformity with the statute, and is to have no statutory effect given to it. Did it operate as a dedication, or is it only evidence tending to show it?

Angell, in his work on Highways, sec. 149, says: “It may be stated as a general rule, that when the owner of urban property, who has laid it off into lots, with streets, avenues and alleys intersecting the same, sells his lots with reference to a plat in which the same is so laid off, or where, there being a city map in which this land is so laid off, he adopts such map, by sales, with reference thereto, his acts will amount to a dedication of the designated streets, avenues and alleys, to the public.”

This rule, we may say, is fully established by the American authorities, but this case does not fall within it. There is nothing to show that the land included in the sub-division was urban property. A sub-division into ten-acre blocks may be...