Vanbuskirk v. Standard Oil Co.

*302 The opinion of the court was delivered by Katzenbace:, J. This is an appeal from a final decree of the court of chancery. The appellant, Standard Oil Company (New Jersey) (hereinafter referred to as the defendant), was the defendant below. The bill of complaint was filed by children and grandchildren of John VanBuskirk, Jr. (hereinafter referred to as the complainants). The purpose of the bill was to enjoin the defendant from removing from a cemetery plot the remains of those buried there or from disturbing the same or in any way desecrating or destroying the cemetery or any of the graves therein, and to restrain the defendant from interfering with the access by the complainants to the cemetery, and to obtain a right of way for the complainants over the defendant’s lands to said cemetery. In order to comprehend the situation presented by the bill of complaint it is necessary to state brieífy a portion of the history of the VanBuskirk family and the changes which took place in a tract of land at Constable Hook, in the county of Hudson, formerly owned by the family, of which the cemetery plot mentioned was a part. No more correct statement of the history of the family with reference to the cemetery can be given than that made by the learned vice-chancellor who heard the case below. His statement is as follows : “James VanBuskirk, whose will was probated December 27th, 1823, died seized of a large tract of land situate at Constable Hook, in what is now the city of Bayonne, on which he resided. Included within his homestead lot, and a few hundred feet from his mansion house, was the VanBoskirk family burial ground, about an acre in extent. By his will, dated September 8th, 1823, he devised all his real estate, with the exception ‘of the burying ground as it is now enclosed,’ and excepting, also, other described real property, to his three sons, John, Nicholas and James, upon condition that no part thereof should be sold by them, but should be divided amongst their children at the time and in the manner they might deem fit. He designated how the real estate *303 devised to his three sons should be divided, giving to his son John and to his heirs forever the homestead lot of forty acres, making no mention of the burial ground other than in the exception quoted. The other real estate excepted from the devise to his three sons was devised to his daughter, Ann. He left him surviving his said three sons and daughter. “John VanBuskirk [son of James], who had changed the spelling of his surname, executed and delivered to his son John VanBuskirk, Jr., a deed dated March 30th, 1864, recorded July 30th, 1864, in which he recited the will of his father and the devise thereby of all of said testator’s real estate, with the exception 'of the burying ground as it is now enclosed,’ and excepting, also, certain other real estate, to his sons, John, Nicholas and James, upon the condition above set out, and further reciting the intention of the grantor, John VanBuskirk, by his deed to convey the land therein-after described, to his son, John VanBuskirk, Jr., in part as his portion according to the power given in the will of James VanBoskerk, and then the grantor proceeded to convey to his son, John, Jr., a tract of land within whose boundaries the burial ground was located, without further reference to said burial ground. “John VanBuskirk [son of James VanBoskerk] died in or about the year 1869, leaving a will dated July 35th, 1864, by which he devised to his said son, John VanBuskirk, Jr., the said homestead lot of forty acres [all or the major part of which he had conveyed to said son by the deed above mentioned] without referring in the description thereof to said burial ground. He added, as the final clause of his will, the following: “ ‘It is my wish, and I hereby order, that the burial ground at Constable Hook, adjoining said homestead, shall not be disturbed in any manner, nor used for any purpose whatever, except for sepulchre only.’ ” John VanBuskirk, Jr., died in the year 1930. Between the years 1864 and 1900 a great change took place in the commnmnitv in which the VanBuskirk property was located. *304 The property during this period was found suitable, by reason of its proximity to navigable waters and large centers of population, for industrial purposes. The city of Bayonne sprang into existence. Corporations purchased lands in the locality and built upon them large manufacturing and industrial plants. Railroads were extended to afford better transportation facilities. The YanBuskirk family surrendered to the changed conditions. It moved from the old manor house and made its abode in a home located a short distance from it. The new home became, in a relatively short time, unlivable by reason of the location of new industries and the expansion of the old. John YanBuskirk, Jr., moved to Connecticut in the year 1889. He soon thereafter conveyed his real estate holdings at Constable Hook to the defendant, with the exception of the cemetery plot. The history of the cemetery plot is a replica of the homestead. It originally was fenced and contained a vault used by the YanBuskirk family. There is some evidence in the record that other families residing in the vicinity had used it for interments. The last interment in the cemetery was made in 1886. The remains of the wife of John YanBuskirk, Jr., were in that year placed in the vault in the cemetery. It was in 1890 thought to be an unsuitable resting place for her body, which was removed to a cemetery on Staten Island. From this date the YanBuskirks’ burial plot continued to remain unvisited, dilapidated, and uncared for. This condition continued for a period of fifteen years. On May 8th, 1905, John YanBuskirk, Jr., conveyed the burial ground to Charles W. Fuller by the following description: “All and singular the land used and employed for the purpose .of sepulchre, and which land and premises are contained in block 256 on map above referred to, and known as ‘old cemetery,’ and containing one acre of land, be the same more or less.” Charles W. Fuller was the attorney of the defendant. Subsequently, on November 1st, 1905, Fuller conveyed by the same description to the defendant. Prior to the transfer by John YanBuskirk, Jr., to Fuller an agreement had been en *305 tered into between them by which VanBuskirk agreed to remove from the cemetery all the bodies of his deceased ancestors and relatives. This agreement was executed. The bodies of his ancestors, including his father and mother, and relatives were removed. Most of the bodies were re-interred in the cemetery on Staten Island. At the hearing it was shown that the tombstones in the burial plot had been removed. The YanBuskirk family vault no longer existed. Sand and dirt had blown over the plot. The fence had disappeared. The plot bore no recemblance to a cemetery. The plot is surrounded by the lands of the defendant. The streets leading to it have long since been vacated by municipal action of the city of Bayonne. Access to the section was cut off in 1900 by the projection across it of a line of railroad of the Lehigh Valley system. No more unsuitable place for the interment of the dead can be imagined. The complainants, at the hearing, produced a piece of a tombstone found in the lot, and several bones which an expert in human anatomy seemed unwilling to testily were human bones. The bones were not'admitted in-evidence. The decree made by the court of chancery provides — first, " that the plot in question is subject to the provisions of the will of John YanBuskirk, dated July 25th,-1864, and shall not be disturbed in any manner nor used for any other purpose except for sepulchre; second, that all descendants of John YanBuskirk have the right to visit the same, and care for, and protect the graves of those interred therein, and for •such purpose are entitled to free ingress and egress over the defendant’s lands surrounding the same; third; that the matter of a proper and convenient right of way shall be referred to a special master for his report. Erom this decree the defendant appeals. It urges four grounds for reversal. We deem it unnecessary to consider the ground advanced that a dedication for private burial purposes is void because it creates a perpetuity for a non-charitable purpose, and the further ground that the defendant is the owner in fee, freed from any trust, respecting the plot in question. We feel that the case can be disposed of by the *306 consideration of the question as to whether the complainants have a standing in the court of chancery to obtain the relief for which they asked and which by the decree they have, apparently, obtained. The complainants base their standing for what they seek upon the right of visitation. They have no title to the plot in question. If their ancestor, John YanBuskirk, Jr., had any title thereto he parted with it by his deed to Fuller, made in 1905. If there is no cemetery there is, of course, no right of visitation. We are of the opinion that no cemetery has existed since the year 1905. If not abandoned prior to that date, it was then abandoned by the removal of all of the bodies of the ancestors and relatives of the complainants buried there, so far as the evidence discloses. At the time of the filing of the bill in this case no vestige of a cemetery remained. We are not, by so holding, placing our approval upon what was done. On the other hand, one only has to refer to the various legislative enactments grouped in the compiled statutes under the title “Cemeteries,” to see that the law recognizes that changes in the surroundings of burial grounds are likely to take place, and that such plots may become unused, uncared for, dangerous to the public health, and public nuisances. Under such circumstances provision is made for the removal of the bodies, and former burial plots may become recreation centers or used for other purposes. In 1905 John YanBurkirk, Jr., because of having removed from the neighborhood many years before, probably realized that the time had come when it was better to abandon the family cemetery and have removed the bodies of his ancestors and relatives. It is at least more charitable to credit him with this resolution than to think he was actuated in what he did by motives purely sordid. Whatever was the motive we think the evidence fully justifies us in holding that at the time of the filing of this bill the former burial plot had been abandoned and had ceased to exist for sepulchre purposes. The complainants, therefore, had no right of visitation. Without right of visitation on the part of the complainants the court of chancery could not decree that the complainants *307 were entitled to ingress and egress to the former burial plot over the defendant’s lands. This view leads necessarily to a reversal of the decree below. There is, however, another feature of the case which we think bars the complainants from the relief prayed for. This is the laches of the complainants. The children of John YanBuskirk, Jr., have all reached middle life. Some have entered the winter of life. Their mother died forty years ago. They knew and testified regarding the changed conditions surrounding the homestead property. They knew that the body of their mother had been removed from the burial plot in 1890; that the last interment in the plot was in 1886; that their father had had removed in 1905 the bodies of their ancestors and relatives, and that he had sold or attempted to sell the property to the defendant in that year. Some of the complainants had not visited the place for over thirty years. Hone of them had made any effort to care for it. The grandchildren who are complainants took no interest in the matter. They all waited before seeking any relief until 'the burial plot bore no resemblance to a cemetery. They remained quiet until John YanBuskirk, Jr., their father or grandfather, had died. In the meantime Mr. Euller, who was the attorney for the defendant and had conducted the negotiations with John YanBuskirk, Jr., had died. Equity discourages attempts to enforce claims where parties have for many years slept upon their alleged rights. The facts of the present case make, it seems to us, a clear case of laches on the part of the complainants. The decree below is reversed, to the end that a decree may be entered dismissing the complainants’ bill.