Town of Leesburg v. FIRST NAT. BANK OF PURCELLVILLE

Gordon, J., delivered the opinion of the court. This suit involves a tract of land within the Town of Leesburg known as the “Potters Field”. The Town seeks a declaration that this land has been dedicated as a graveyard for the burial of paupers, and that the State Highway Commissioner and First National Bank of Purcellville are wrongfully in possession of part of the land. Holding that the Town had no standing to seek such a declaration, the trial court sustained a demurrer to the Town’s amended bill of complaint and dismissed the suit. The Town appeals. The Town admits that the land records do not show any conveyance of the land, much less a conveyance for a paupers’ graveyard. Rather, the Town relies upon an implied dedication of the land evidenced by the fact that paupers have been buried there over a period of more than 130 years. The Town also alleges that recitals in ancient deeds indicate that the Town is responsible for the maintenance and control of the *796 graveyard, and that “at times” the Town has maintained the graveyard. The Potters Field was located in Loudoun County until 1958 when it was annexed by the Town of Leesburg. Apparently before the annexation, Loudoun County conveyed two parcels of the Potters Field by quitclaim deeds. The State Highway Commission and the First National Bank of Purcellville claim title to the parcels under those deeds. * The defendants, Loudoun County, the State Highway Commission and the First National Bank of Purcellville, do not contend that the bill of complaint does not adequately allege a dedication of the Potters Field as a paupers’ graveyard. The only issue raised before us is whether the Town of Leesburg has standing to maintain a suit to enforce the alleged charitable trust. The defendants point out that the amended bill alleges that the Potters Field was dedicated for the burial of paupers, not that it was dedicated to the Town of Leesburg or for the burial of paupers of the Town. They suggest that since the Potters Field lay outside of the town limits when the alleged dedication was made, any dedication was for the benefit of paupers of Loudoun County. But even if that be true, the land now lies in the Town of Leesburg, and the Town is now the public representative of those citizens of the County who became citizens of the Town by virtue of the 1958 annexation. We therefore hold that the Town has standing to maintain this suit. Town of Clarion v. Central Savings Bank & Trust, 71 Colo. 482, 208 P. 251 (1922) (town has standing to enforce gift of building for use as public library); Ocean Navigation Co. et al. v. Town of Palm Beach, 114 Fla. 48, 152 So. 853 (1934) (town has standing to enforce dedication to public of land used as a public beach); Gordon County et al. v. Mayor, etc., of Town of Calhoun, 128 Ga. 781, 58 S.E. 360 (1907) (town has standing to enforce dedication of land as a public square even though town was not incorporated at time of dedication); White v. Moore, 139 App. Div. 269, 123 N.Y.S. 1012 (1910) (village has standing to restrain nuisance on land dedicated as a public square even though town not incorporated at time of *797 dedication). See generally G. Bogert & G. Bogert, The Law of Trusts & Trustees § 412 (2d ed. 1964); E. McQuillin, Municipal Corporations § 33.72 (3d ed. 1964). Reversed and remanded. Footnotes [*] The County of Loudoun, the State Highway Commission and the First National Bank of Purcellville were ioined as defendants in this suit. Only the Bank appeared for the appellees in this Court. The facts stated in this opinion, other than those respecting the 1958 annexation proceeding, are taken from the amended bill of complaint. The trial court took judicial notice of the annexation proceeding.