Young v. Board of Com'rs of Mahoning County

• Decision Date: 21 May 1892
• Citation: 51 F. 585
• Parties: YOUNG v. BOARD OF COM'RS OF MAHONING COUNTY et al.
• Court: U.S. District Court — Northern District of Ohio

51 F. 585

YOUNG v. BOARD OF COM'RS OF MAHONING COUNTY et al.

United States Circuit Court, N.D. Ohio, Eastern Division.

May 21, 1892

Frank Hutchins and Gen. Sanderson, for plaintiff.

A. W Jones, Judge Arrel, Hine & Clark, Disney Rodgers, and George E. Rose, for defendants.

Statement by TAFT, Circuit Judge:

This is an action for the recovery of the possession of real property by Charles C. Young, a citizen of the state of New York against the county commissioners of Mahoning county, Ohio. The subject-matter of the suit is lot No. 96 of John Young's original plat of the village of Youngstown, upon which now stand the courthouse, jail, and county offices of Mahoning county. John Young, the common source of title for plaintiff and defendants, signed and recorded in 1802 a town plat of 100 lots in the township of Youngstown, then in the county of Trumbull, but now in that of Mahoning. The plat was accompanied by a description of the streets and squares it purported to dedicate, but it was not acknowledged in accordance with the statute then in force, and did not therefore, have any effect to take the fee out of John Young. Lots Nos. 95 and 96 on this plat were each marked with the words 'Burying Ground.' They lie on opposite sides of Market street, and on the south side of North street, in the present city of Youngstown. From the early part of the century until 1868 the lots were used as a burying ground. In 1865, one Niblock, owning an adjoining lot, fenced in 30 feet of lot No. 95. This was much resented by the older citizens of Youngstown, whose parents and relatives were buried in the cemetery, and the aid of a local court was invoked to prevent the desecration. Suit was first brought in the name of the county commissioners, but was defeated on the ground that title to the lot was not in them. Suit was then brought against Niblock in the name of four citizens of Youngstown for the benefit of the public. Gov. David Tod, whose father was buried in the old cemetery, was one of the plaintiffs, and took an active part in the controversy. B. F. Hoffman was retained as counsel for the plaintiffs in that suit in 1866. To meet the difficulty about the title, Hoffman drew and procured the passage of an act by the legislature, (April 3, 1867,) entitled 'An act for the protection of certain graveyards and burial grounds, ' (64 Ohio Laws, p. 102.) The first section only is important here. It reads as follows:

'That the title, right of possession, and control to and in and of all public graveyards and burial grounds located within incorporated cities, towns, and villages, which have, in fact, been set apart by the owners and dedicated as graveyards and burial grounds, for the use and benefit of the public, and used as such by the public, but which have not been dedicated according to the forms and requirements of law, * * * be, and the same are hereby, vested in the cities, towns, and villages, respectively, where any such graveyards and burial grounds may be located; and the councils of such cities, towns, and villages are hereby authorized and required to take possession, control, and charge of all such grounds within their respective limits, and protect and preserve the same, and make such ordinances, sales, and regulations as may be necessary and proper for said purposes, and consistent with the health and welfare of the inhabitants; and they are also authorized and required, when necessary, to institute suits in the names of said municipal corporations, to recover possession of said graveyards and burial grounds, remove trespassers therefrom, and recover damages for injuries thereto for any part thereof, or to any tomb or monument therein.'

Pending the suit, and after the passage of the foregoing act, Hoffman was employed by Charles C. Young, the plaintiff in the case at the bar, who lived in Whitestown, N.Y., to look after pieces of land in Youngstown, title to which, by descent from his father, John Young, the maker of the town plat, and by conveyances from his brothers and sisters, had then become vested in him. Hoffman and Gov. Tod, on behalf of the plaintiffs in the Niblock suit, and for the purpose of removing any question of title from the controversy, appealed to Young to execute a quitclaim deed of the burying ground to the village of Youngstown. Both of them wrote letters to Young, explaining in full the situation, the defect in the original dedication of John Young, the use of the burying ground for half a century with John Young's consent, the actual dedication thereby, the trespass by Niblock and others, the failure of one suit for defect of title, and the recent passage, as an attempted remedy, of the act of the legislature at Hoffman's instance. Young had not been in Youngstown since 1848, and did not visit it again until 1888. His only knowledge of the circumstances was gained from the correspondence with Hoffman and Tod. Hoffman drew the quitclaim deed, and forwarded it to Young, who executed it in July, 1867, and sent it in October of the same year to Gov. Tod, with instructions to deliver it to the council of the village on condition that the village would pay Hoffman $15 due him from Young for services in other matters. By the quitclaim deed, Young, 'for divers good causes and considerations thereunto moving, especially for one dollar received to' his full satisfaction, absolutely gives, grants, remises, releases, and quitclaims 'unto the said incorporated village of Youngstown and its successors, forever, to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature of Ohio in that behalf, all such right and title as I, the said C. C. Young, as one of the heirs, and as assignee and grantee of the other heirs and devisees of John Young, the original proprietor of said township and village lands, have or ought to have in or to the following described lands: Situate in said village, and known and designated on the original plat of said village made by said John Young, and recorded in Trumbull county records of deeds, Book A, page 118, as burial grounds, and being inlots number ninety-five and ninety-six, and used as burial grounds by the citizens of said village and township since about the year A.D. 1799. Said inlot No. 95 lies on the west side of Market street, and extends westerly to inlot No. 94, and covers all the ground inclosed and used as a burial ground for over fifty years; and said inlot No. 96 lies on the east side of said Market street, and includes the ground inclosed and used as a burial ground for a like period. To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever.'

After the passage of the act of the legislature referred to above Hoffman made the village of Youngstown a party to the suit against Niblock; and when the deed was received from Young, on behalf of Tod and the other plaintiffs in the Niblock suit, he filed a memorial with the council of the village, reciting everything which had been done in the suit, including the procurement of the act of the legislature and the quitclaim deed, and praying that the expenses theretofore incurred by the plaintiffs be assumed by the village, and that the suit be thereafter prosecuted by it, and, in furtherance thereof, that the deed be accepted, and Hoffman's fee due from Young be paid. The prayer was granted by the village council, the deed was accepted, all previous expenses and fees were assumed and paid, and Judge Hoffman was continued as the attorney of the village in the suit. In this memorial, Hoffman, as an inducement to the village council to accept the quitclaim deed, expressed his opinion that the deed so vested the title in the village as to permit it to use the burying ground for general public purposes, should the time ever come when the health of the city would require the removal of the cemetery from the village limits. (This statement of Hoffman, as to the effect of the quitclaim deed, as will be seen from the opinion of the court, was held irrelevant and incompetent.) In 1852, a new cemetery had been established beyond the limits of Youngstown, and after 1860 nearly, if not all, the interments were made there. From 1860 to 1865 the remains of some of the dead were removed from the old to the new cemetery. Between 1865 and 1868 the removals were more frequent, and the old ground was much neglected; the fences were not kept in repair, gravel was dug on the lots by the city authorities, and in some instances by private individuals, and hauled away. Finally, on December 22, 1868, the council of Youngstown, which had then ceased to be a village, and become a city, passed an ordinance by which all interments in the old burying ground were thereafter forbidden, and the remains of all already interred there, which should not be removed by friends and relatives before April 1, 1869, were ordered removed at public expense. A second resolution, directing the street commissioner to remove, at public expense, all bodies still in lots 95 and 96, was passed in 1871. After this the lots lay unused, except that gravel was taken from them by the city authorities for making and repairing the streets. In 1874 the legislature passed an act providing for the removal of the county seat of Mahoning county from Canfield to Youngstown on a majority vote at the next election, and on condition that the citizens of Youngstown should donate to the county a lot or lots, and should erect thereon the county courthouse, jail, and offices, at a cost of not less than $100,000, free of expense to the county. 71 Ohio Laws, pp. 180, 181. The result of the election was favorable to the removal, and March 16, 1875, the...