Bessemer Land & Improvement Co. v. Jenkins

HARALSON, J. 1. The close alleged to have been broken by defendant is not described in the complaint with definite particularity, but sufficiently so to prevent the defendant from being misled or uncertain as to the particular locus in quo of the trespass complained of. If a more accurate description had been made, it would have given the defendant no better information as to the venue of the realty, than that furnished by the complaint. — 2 Chitty on PL, 609 The demurrer, which questioned the sufficient accuracy of the lot or close which plaintiff alleges defendant broke and trespassed on, Avas properly overruled. 2. The case was tried on the two pleas of ‘ ‘not guilty,” and “that at the time of said alleged trespass, the defendant had the rightful possession of the land on which said trespass is alleged to have been committed.” There Avere-other errors assigned on account of the rulings of the court on the pleadings, which have not been insisted on in argument, and will bo treated as Avaived. 3. Exactly Avhat the rights of one are to the burial place of his dead — in the absence of a fee to the soil, or his right to the possession thereof — as respects the maintenance of a civil action for its disturbance, is one of delicate and, as yet, not very satisfactory solution. People have so much respect for the final resting place of the dead, and there is so little to tempt one to disturb their repose, cases are of rare occurrence where such disturbances have become the subject of litigation and the adjudication of the courts. Those that have arisen, have generally, as in this case, grown out of the removal of the dead from one place to another, for purposes, as claimed, of health, coirvenience, or the better care, preservation and ornamentation of these burial places. Cooley, in his work on Torts, says : “In respect to the burial of the dead, if any where, shall we find in the common law a recognition of the legal rights of the family as an aggregate of persons. Even in that case, however, the recognition is very faint and uncertain. — 146 — An unlawful interference with tli= buried dead of a family, might probably be restrained by injunction on their joint application, and the owner of the lot in which the body was deposited might maintain trespass quare clausum fregit for its disinterment, and recover substantial damages, in awarding which the injury to the feelings would be taken into consideration;” and he adds, that the common law did not recognize the bodies of the dead as property, belonging to the surviving relations, ‘‘though it did recognize a property in the shroud or other apparel of the dead as belonging to the person at the charge of the funeral.” — Cooley on Torts, 239-40. Blackstone in his Commentaries, referring to the subject, says : “But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes ; nor can he bring any suit or action against such as indecently, at least, if not injuriously, violate and disturb their remains, when dead and buried. The person indeed who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it; and if any one in taking up a dead body steals the shroud or apparel, it will be felony, for the property thereof remains in the executor, or whoever was at the charge of the funeral.”- — 1 Blackstone Com., 429. It seems to be very generally agreed that a dead body is not the subject of property rights, and becomes, after burial, a part of the ground to which it has been committed, and that an action qua e clausum fregit may be maintained by any person who has the fee to the soil, if entitled also to the poss'ession, against one who digs and disturbs the grave. But to entitle one to this action, he must have the actual or constructive possession of the soil. — Meagher v. Driscoll, 99 Mass. 284; Wild v. Walker, 130 Ib. 422; Guthrie v. Weaver, 1 Mo. App. 136; Page v. Symonds. 63 N. H. 17; Shipman v. Baxter, 21 Ala. 456; Ledbetter v. Blassingame, 31 Ala. 496; McInerny v. Irvin, 90 Ala. 276; 3 Am. & Eng. Encyc. of Law, 54; Bonham v. Loeb, 107 Ala. 604. When one buries his dead, therefore, in soil to which he has the freehold 'iglit, or to the possession 'of which he is entitled, it would seem there is no difficulty in his protecting their grayes from insult or injury, by an ac — 147 — tion of trespass against a wrongdoer. But, bodies are most commonly interred in public cemeteries, where the parties, whose duty it is to give them burial, are not the owners of the soil by deed properly executed, and have no higher right, than a mere easement or license. Of such it is held, that they do so under a mere license, and their exclusive right to make such interments in a particular lot, would be limited to the time during which the ground , continued to be used for burial purposes ; and upon its ceasing to be so used, all they could claim would be, that they should have due notice and an opporrunity to remove the bodies to some other place of their own selection, if they so desire, or on failure to do so, that the remains should be' decently removed by others — 3 Am. & Eng. Encvc. of Law, 50, and authorities cited; 1 Wash, on Real Property, § 33.. In Partridge v. First Ind. Ch. of Balt., 39 Md. 637, a case of one who buried in a church cemetery under license from the trustees, it was held, that while the license continued, the grantee could bring trespass or case for any invasion or disturbance of the grave, whether done by the grantors or strangers. But it was said: “If in the course of time it should become necessary to vacate the ground as "a burying ground, all that he could claim, in law or equity, would be that he should have due notice and the opportunity afforded to him of removing the bodies and monuments to some other place of his own selection, or that, on his failing to do. so, such removal should be made by others.” — 1 Wash, on Real Property, § 33; Kincaid’s Appeal, 66 Penn. St. 411. In Page v. Symonds, 63 N. H. 17, it was said : “Such right of burial is not an absolute right of property, but a privilege or license, to be enjoyed so long as the place continues to be used as a burial ground, subject to municipal regulation and control, and legally revocable whenever the public necessity requires. It is a right of limited use for purposes of interment, which gives no title to the land,’-’ analogous to the grant of a pew in a meeting-house, and resembling a pew tenancy .— Craig v. First Pres. Ch., 88 Penn. St. 42; Kincaid’s Appeal, 66 Penn. St. 411, supra; Windt v. The German R. Ch., 4 Sandf. 471; Richards v. Dutch Ch., 32 Barb. 42; Sohier v. Trinity Ch., 109 Mass. 1; Bryan v. Whistler, 8 B. & C. 288; Wood v. Leadbetter, 14 M. & W. 837. It would — 148 — seem, therefore, to accord with right principle and authority, that where one is permitted to bury his dead in a public cemetery, by the express or implied consent of those in proper control of it, he acquires such a possession in the spot of ground in which the bodies are buried, as will entitle him to action against the owners of the fee or strangers, who, without his consent, negligently or wantonly disturb it. This right of possession will continue as long as the cemetery continues. to be used ; but if, for proper and legal reasons, it should be discontinued, and the license withdrawn, and the bodies of the dead are to be removed, .it must be done decently, only after due notice to the party entitled, if known, and such notice can be given. 4. A dedication of land has been defined to be tlio act of devoting or giving of the property to some public object in such manner as to conclude the owner. — Forney v. Calhoun County, 84 Ala. 220; 5 Am. & Eng. Encyc. of Law, 395. It may be done verbally or by writing, by a single act or a series of acts, if clear and unequivocal, as indicating the owner’s intention. But a presumption of dedication will not follow from mere user, without more, for any period s"ort of twenty years. — Steele v. Sullivan, 70 Ala. 589; Forney v. Calhoun County, 84 Ala. 215. In the latter case it w;as said : “The doctrine of equitable estoppel applies with peculiar force to cases of this kind. When the owner of land involuntarily, or by culpable negligence, leads the public to believe that lie has dedicated it to a public use, he will upon every principle of fair and conscientious dealing, be estopped from denying the fact of such dedication to the prejudice of those whom he has misled. * * * * * * * * To be effective and valid, a dedication [as was there held] must be accepted, and such acceptance may be shown either by some positive conduct of the proper public officers, evincing their consent in behalf of the public, or may be inferred from official acts of implied recognition on their part, or by long public'use, or from the beneficial nature of tho dedication.” — Gage v. M. & O. R. R. Co., 84 Ala. 224. 5. Making application of these principles to the errors assigned, and it appears, that the question to the plaintiff' on his examination as a witness in his own behalf, by his counsel, — “Whom did you buy that coffin — 149 — from?” — the one in which the child was buried, — was wholly irrelevant to the case against the defendant company. It was not pretended that it knew when or from whom the coffin was purchased, or that-the corpse of the child was even put in it and buried. It was calculated to confuse, by withdrawing the minds of the jury from the real issue, — the rightful possession of the soil by plaintiff. 6. And on the same grounds, the several objections to the introduction of .the receipt of S.E. Jones, showing the cost of the casket, the digging of the grave, the shroud and carriages for the funeral, and that these item's had been paid by the plaintiff, should have been excluded. 7. The question, — “Who had the grave dug?” — was .illegal. The answer was, that S.E. Jones had it done. It was not pretended, nor was it shown, that Jones was the agent of the defendant, or that it had anything to do with the digging of the grave. If the land had been dedicated for the purpose of a public cemetery, as alleged in the complaint, and the plaintiff hacl burial rights therein in consequence, it was wholly immaterial who dug the grave. If it had been shown that Jones was the agent of the defendant in the digging of the grave, the evidence might, perhaps, have been properly admitted. And so it wras improper to allow the plaintiff to prove, that far back, before the burial of the child, he had sold plaintiff a bed-room set of .furniture. If it tended to show that Jones knew plaintiff and had knowledge that he resided in Bessemer, the transaction occurred before Jones had any agency of defendant for the removal of the bodies from the old to the new cemetery. S. McNutt, who was the secretary of the defendant company, at the time, testified that the old cemetery— the one in which plaintiff’s child was buried — was enclosed in the latter part of 1887, by order of Mr. Ber-ney, the vice-president of the compauy, and was used as a burying ground from that time until some time in 1890, during which time it was in the hands of the engineer of the city of Bessemer, and parties wishing to bury in it, were referred by the company, to said engineer. It was shown, chat at the first annual meeting » of the stockholders, a report was made by the directors or officers in charge, reciting, among other things, that — 150 — “a convenient, eligible and picturesque site for the burial of the dead is always a source of gratification and pride to citizens, as well as attractive, and favorable comment to visitors. Such’ a local ion, the company selected and set aside for the purpose, and has had it suitably inclosed, laid off into lots, drives and walkways, at an expense of $585.89. In time, by small charges for interment plots, the expense of its continued ornamentation and improvement will be more than met.” The question was propounded to the'witness, “Was any part of the report rejected by the stockholders at that meeting?” This was objected to on the ground, “that the only proper way to prove the action of the stockholders’ meeting was by the minutes of the meeting.” The question was allowed, and the witness answered, that no part of it was rejected. It will be noticed, that the question and answer did not refer to what particular action was taken on the report, but rather, that no action was taken at all. There is a difference in testifying to what appears on a minute book, without its production, and testifying that a particular thing does not appear on the minutes, especially if the minute entries are in the hands of the witness when testifying. The witness had the books, as it appears, and testified that there was “not a -word- in the minutes of any of the meetings of the directors or stockholders of the company, relating to the cemetery on 19th street” — -the one in question. The books being in the hands of the secretary and bookkeeper of defendant, it was not improper for him to testify, against defendant’s objection, tlr t no part of the report was rejected, so far as the books showed. The defendant, whose books they were, might have shown by their introduction, that this statement, if untrue, was incorrect. The report itself was not subject to the objection of irrelevancy. It tended to prove the fact of dedication as averred in the complaint. 9. The question .propounded to the witness Jones— “Has'suit been brought against you by Mr. Jenkins, the plaintiff in this case, growing out of the removal of the same body, and has that suit been finally determined?” — should have been allowed to.be answered. Its tendency was, if slight, to show the interest of the witness against the defendant. ■ 10. There was no error in refusing the general charge — 151 — for'defendant. .Its giving is sought to be justified on the ground, that the evidence showed without conflict, that the defendant had not dedicated this property for burial purposes; that plaintiff, therefore, derived no right to the soil in which the grave was dug, and that the allegations of the complaint, that there was a dedication and consequent right growing therefrom, had failed. But, the proofs referred to above do tend to show a dedication ; that the dead of the community, including plaintiff’s child, were buried in the cemetery with the knowledge, consent and license of defendant, and that the plaintiff and the public generally, were encouraged to bury their dead there. If this was true, the defendant would be estopped to deny plaintiff’s right to and possession of the spot of land for the purposes used, and it could not, therefore, any more than a stranger, unlawfully interfere with or desecrate it.— Davidson v. Reed, 111 Ill. 167. For like reasons, the 8th charge requested by defendant was properly refused. The court upon its own motion, charged the jury that “The undisputed evidence shows that that lot or that cemetery on Nineteenth street had, prior to the time of the burial of plaintiff’s child therein, been dedicated by the Bessemer Land Company for burial purposes.” - This charge assumed the credibility of the evidence — a question for the jury — and was upon its effect, without request, and was, for these reasons certainly, erroneous. 11. There was no error, under the evidence, in refusing charges 3, 4, and 7. It is nowhere denied, that in actions of this character, when maintainable, the injury to the natural feelings of the plaintiff may be taken into consideration in estimating the damages. — Cooley on Torts, 240; 3 Am. & Eng. Encyc. of Law, 54; Meagher v. Driscol, 99 Mass. supra. 12. The fact that plaintiff erected a head-board at the grave and put turf around it, and planted two cedar trees, one at its head and the other at its foot, if done with the knowledge and consent of defendant, which is not shown, would tend to show possession by plaintiff; but these acts of his, without more, would not authorize him to bring this ■ action, as was assumed by the court in its oral charge to the jury. It-made too much of these facts. The right to maintain the action rested on other and higher considerations. — 152 — 13. There was evidence tending to show, that plaintiff had such actual possession of the plot of ground, as authorized him to bring this suit, if his possessory rights were invaded. There is no dispute as to the fact, that Jones, the undertaker, was employed by defendant, to remove the bodies of the dead from the old to the new cemetery, and that he did dig up and remove the plaintiff’s child’s remains ; and it tends to show that this was done without the knowledge or consent of the plaintiff, and without notice to him to remove them himself. But, there was also evidence tending to show, that plaintiff did know or have notice, that defendant had discontinued the old cemetery, and parties were requested to remove their dead to the new one provided by the company in lieu of the old. There was error, therefore, in that part of the court’s oral charge, which roads, “If the plaintiff had actual possession, why, then I charge you as a matter of law, that the plaintiff in this action .would be entitled to recover.” 14. There was a motion for a new trial, on the ground, among others, that the verdict of the jury for seventeen hundred dollars, was excessive. We do not hesitate to say, that these damages, under the evidence in this case, were excessive, and that the verdict for that reason ought to have been set aside. 15. We have noticed only such of the many errors assigned as have been insisted on. What has been said of these, will be sufficient for the purposes of another trial. Reversed and remanded.