Wormley v. Wormley

• Decision Date: 17 February 1904
• Citation: Wormley v. Wormley, 207 Ill. 411, 69 N.E. 865 (Ill. 1904)
• Parties: WORMLEY v. WORMLEY et al.
• Court: Illinois Supreme Court

207 Ill. 411

69 N.E. 865

WORMLEY

v.WORMLEY et al.

Supreme Court of Illinois.

Feb. 17, 1904.

Error to Circuit Court, Kendall County; Chas. A. Bishop, Judge.

Bill in chancery by George D. Wormley and others agsinst John T. Wormley. There was a decree dismissing the bill for want of equity, and complainant George D. Wormley brings error, joining his co-complainants as defendants in error. Reversed.Aldrich & Worcester, for plaintiff in error.

Hopkins, Dolph & Scott, for defendant in error John T. Wormley.

This is a bill in chancery filed in the circuit court of Kendall county on June 10, 1899, by the plaintiff in error, George D. Wormley, and all of the defendants in error except John T. Wormley (said defendants in error, except John T. Wormley, being 10 in number), as complainants, against defendant in error John T. Wormley, as defendant. A general demurrer was filed to the bill. On January 4, 1901, the demurrer was sustained. Subsequently, on April 3, 1901, the bill was dismissed for want of equity, and the costs were taxed against the complainants below, and it was ordered that the defendant below have execution therefor. The present writ of error is sued out for the purpose of reviewing the decree so entered, which dismissed the bill for want of equity.

In the bill, the orators therein being plaintiff in error, George D. Wormley and 10 other persons, who are defendants in error herein with the defendant in error John T. Wormley, alleged that in February, 1839, and prior thereto and thereafter, one John H. Wormley was the owner in fee of a certain tract of 80 acres of land in said county, and also was the owner in fee of other lands particularly described in the bill; that such other lands so described constituted in all one-half acre; that said one-half acre of land so described was generally known as the ‘Wormley Cemetery,’ and had been so known and recognized ever since the year 1839; that in February and June of 1839 two of John H. Wormley's relatives were buried in said one-half acre of land; that in 1845 a brother-in-law of his was buried on said half acre; that in 1845 John H. Wormley, being the owner of said one-half acre, and of other lands about the same, whereon he resided, dedicated by words and acts said half acre for a burying ground for the uses of the Wormley family and their relatives; that ever since 1839 said half acre has been used by the Wormley family and the neighborhoodfor the uses of sepulture; that since the year 1845 there have been buried on said dedicated land many persons, the names of about 30 of whom are mentioned in the bill, being of the Wormley family, and relatives of orators; that monuments have been erected over the graves of many of said decedents, many of them by orators; that orators and other relatives of said decedents have continued to protect the remains of those buried in said cemetery, and to preserve the identity and memory of their said relatives; that orators have not in any manner neglected to preserve the monuments erected to indicate the identity and preserve the memory of their said relatives, or to give and continue to said cemetery the character and name of a burial ground, except so far as they have been prevented by John T. Wormley, the defendant; that there were then, at the time of filing the bill, in said cemetery, more than 80 graves cared for and kept by orators and other relatives of the deceased; that John H. Wormley settled in Oswego, in Kendall county, several years before 1839, and resided on and owned the farm on which said cemetery is located from the time of such settlement until the time of his death, about the year 1890; that during all that time he recognized said cemetery as the burial ground of his relatives and the neighborhood, and assisted in maintaining the same as such; that during his lifetime he, with other relatives of those buried in said cemetery, caused to be erected and maintained a suitable fence inclosing said half acre dedicated by him as a cemetery; that such fence was kept up by orators and other relatives of the deceased until prevented by the defendant in a violent and unlawful manner; that, upon the death of John H. Wormley, the defendant, John T. Wormley, as his son and heir, came into the ownership and possession of the farm on which said cemetery is located, and still owns and possesses the same; that, for many years after his coming into such ownership of said farm, he recognized the said cemetery as the burying ground of and for the Wormley family and neighborhood, and that the same had been dedicated by his father, John H. Wormley, for such purposes; that said cemetery is located on said farm, on the line of the Aurora and Oswego Wagon Road, and ingress and egress in and out of said cemetery can be had without in any way interfering with or trespassing on the lands or premises of the defendant, John T. Wormley; that lately said defendant has torn down the fence surrounding said cemetery, and is pasturing cattle, horses, and swine therein; that he has defaced and is defacing the monuments and desecrating the graves in said cemetery; that he threatens to shoot and kill any persons who attempt to fence said cemetery, or care for the monuments and graves therein; that he threatens to enter and remove the monuments therein, and to plow and cultivate the land therein; that by thereats and force he prevents orators and other relatives of the buried from replacing the fence, or caring for the monuments and graves in said cemetery; that orators fear that he will carry his threats into execution, unless restrained by the order of the court. The bill thereupon prays that John T. Wormley may be restrained by injunction from defacing or in any manner interfering with the monuments and graves in said cemetery, or with orators, or any one of them, in fencing said cemetery, and preserving the monuments and caring for the graves therein, or in any way interfering with the fence or fences of said cemetery now or hereafter erected; that upon a final hearing it may be ordered and decreed that said described one-half acre of land, known as the ‘Wormley Cemetery,’ has been dedicated to the Wormley family and their relatives, and neighborhood contiguous thereto, as a burying ground; that said injunction may be made perpetual, and orators may have such other relief as equity may require, etc.

MAGRUDER, J. (after stating the facts).

1. It is well settled in the United States that cemeteries are among the purposes for which land may be dedicated, and it is held that, upon such dedication, the owner is precluded from exercising his former rights over the land. 5 Am. & Eng. Ency. of Law (2d Ed.) p. 784, and cases referred to in notes.

It is also well settled that a court of equity will enjoin the owner of land from defacing or meddling with graves on land dedicated to the public for burial purposes, at the suit of any party having deceased relatives or friends buried therein. Beatty v. Kurtz, 2 Pet. 585, 7 L. Ed. 521;Davidson v. Reed, 111 Ill. 167, 53 Am. Rep. 613. In the case of Beatty v. Kurtz, supra, the Supreme Court of the United States, in speaking of property consecrated to cemetery purposes, held that the removal of the memorials erected by piety or love to the memory of the good are such acts as cannot be ‘redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.’ In Davidson v. Reed, supra, two persons, residents in the neighborhood of a public burying ground, having friends buried there, filed a bill to enjoin the party owning the tract of land on which it was located from defacing the graves, and to preserve the ground for the public use for burial purposes; and it was there held that they could maintain the bill in their names, for the benefit of themselves, as well as if all others directly interested had joined.

It is also well settled that no particular form or ceremony is necessary to dedicate land for the purposes of a cemetery. All that need be shown, to constitute such a dedication, is the assent of the owner, and the fact that the land is used for the public purposes intended by the appropriation. Staking off ground as a cemetery and allowing burials therein amounts to a delication. An express setting apart of land for such a purpose by the owner may constitute a dedication of the land as a burial ground or cemetery. 5 Am. & Eng. Ency. of Law (2d Ed.) p. 784; 9 Am. & Eng. Ency. of Law (2d Ed.) p. 28; Hagaman v. Dittmar, 24 Kan. 42;Hayes v. Houke, 45 Kan. 466, 25 Pac. 860. It has been held that the notorious use of property for 20 years for burial purposes with the acquiescence of the owner affords presumptive evidence of its dedication for such purposes. Boyce v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 464.

In Davidson v. Reed, supra, this court held that a dedication of land to the public for any public use may be shown by grant, by user, or by the acts and declarations of the owner, coupled with evidence of acceptance by the public, and that, where there was evidence of an intent to dedicate, no particular form or ceremony is necessary. In Davidson v. Reed, supra, it appeared that the owner of a quarter section of land as early as 1844 buried a child in a corner thereof, since which time the same had always been used by the people of the neighborhood as a public burying place, and the declarations of such owner showed an intent to devote the land to such use, and the subsequent owners of the quarter section of land made no objection to such use, but recognized the same as a public burial place; and it was there held that these facts were sufficient to show a dedication of the land so used to the public for a place for the interment of the dead.

In Alden Coal Co. v. Challis, 200 Ill. 222, 65 N. E. 665, we...