Pierce v. Spafford

The opinion of the court was delivered by Veazey, J. The report of the referee clearly shows a dedication by Potwine in about 1825, of the land then fenced out from his farm for the purpose of a burial ground. The intent to make a dedication, the fact of making it, the acceptance and appropriation for the purpose intended,, are fully found. Nothing appears to show that Potwine reserved any right to the yard in respect as to its control and management for burial purposes, while it should be used for such purposes, different from what every other person had who took up and appropriated a lot therein. No question is necessarily involved in this case as to who does or would own the fee in the event that the dead there buried should be removed and the enclosed land abandoned as a burial ground. It was in use as dedicated for a burial place or grave yard when the defendant took his deed of the farm out of which it had originally been taken ; and it has continued to be so used ever since. We do [399] not regard it as a dedication to the use of those only who helped fence the yard in the first instance, or who first appropriated lots therein. There is nothing to show that such was the intention or understanding of Mr. Potwine, or others who took lots ; on the other hand, we think the report shows that he and the others and the public understood that it was a dedication for the public generally who would be accommodated by it as a burial place. It has been so treated and used for more than fifty years. Persons having no lots have been buried there ; and no one was ever denied burial there. When persons who had taken a lot moved away before having occasion to bury in it, others have stepped in and appropriated the same lot. It is and always has been since its dedication a public burial ground. Therefore the selectmen had the right under the statute, (Gen. Sts. ch. 18, sec. 2,) to make all necessary regulations concerning it; and since 1864, they could have granted and conveyed by deed lots therein. Acts of 1864, No. 76. It does not however appear that they have ever assumed any control over, or management of, the yard. Whatever has been done to keep it in süitable condition has been by the voluntary contribution and work of individuals in that vicinity. The defendant has been the most active in this respect, and has assumed to be the general manager of the premises. He claims that the yard was embraced in his deed of the farm, and that he had the right under his deed to designate and sell lots not before appropriated, and to keep the road-way into and through the yard unobstructed ; and in any event, he and all other rightful lot-holders were tenants in common of the unappropriated land and road-way. - These claims cannot be sustained to the full extent. The claim of title by prescription made before the referee is not pressed in argument here. It is immaterial whether the description of the defendant’s deed covered this land or not. The dedication being for the purpose and of the character above set forth, the defendant had and has no greater or different right in the yard while in use as dedicated than any other holder of a lot therein, so far as pertains to the management of the yard or the disposal of lots. His assumption of such right could not create it. By appropri [400] ating a lot a person gained no right in the unappropriated land. A proper road-way having been laid out through, the yard when it was first dedicated and allotted, and the same being necessary to a convenient use of the lots, the lot-holders are entitled to usé such roadway for the purpose designed by it, and no one has a right to obstruct it, or to appropriate it for any other use. Therefore any lot-holder having occasion to pass over the road to his lot and finding an obstruction in his way, might remove it. But in the absence of all regulations by the selectmen or any other lawful authority, no one had any general right to regulate such road-way. The defendant’s general conduct in regard to this yard is worthy of commendation, but it did not create in him legal rights different from those of other lot-holders. Judging from the original plan of the yard, it would seem that Dickinson appropriated a part of this road-way for his lot; but the referee has not so found the fact; and so far as appears in this case, we must assume that Dickinson did not invade the road-way by the appropriation he made. He had the same right to repel a trespasser upon his lot that other lot-holders had upon their lots. A person having staked out a lot and entered into possession of it and not abandoned it, thereby obtained such an interest and possession as would enable him to defend it against an appropriation by another person. Dickinson therefore had the right to remove the post which the plaintiff put upon his lot. The fact that the stakes originally placed at the corners of Dickinson’s lot had in the course of time rotted down or been removed, and that the plaintiff did not know the exact extent of Dickinson’s lot, would not, in view of what he must have known about Dickinson’s occupancy, and in view of all the facts reported, give the plaintiff the right to invade what Dickinson had actually and properly taken as a lot. And upon being notified that he had got on to Dickinson’s lot, and that he must take away his post and fence, he should have taken them away. Dickinson having the right to remove the post on his lot, could and did authorize the defendant to remove it for him. The defendant, acting under the authority of Dickinson, may stand on Dickinson’s right. The fact that both parties acted under the erroneous assumption that it was the defendant’s duty [401] to remove the post and chains, would not destroy the defendant’s right to depend on Dickinson’s right. Dickinson having the right to remove the post, could not direct the defendant to remove it without conferring upon him all the right that the former had in this respect. The plaintiff was a wrong doer by putting the post in the road way, but by so doing and hanging his chains thereon, and about the lot, he took possession thereof, and can maintain trespass against the defendant, who had no right for interference therewith. Fletcher v. Cole, 26 Vt. 170. Defendant did not remove that post because it obstructed him or Dickinson in the reasonable use of their own lots. Upon the foregoing views the defendant had no right te remove the other two posts. The case is peculiar, and the law which governs rights resting in dedication is anomalous, but the general principles are well established by the cases cited by counsel from our own reports and elsewhere. See especially, City of Cincinnati v. The Lessees of White, 6 Peters’s Rep. 431; Hunter v. The Trustees of Sandy Hill, 6 Hill’s Rep. 407. In the latter case the court point out the distinction between a dedication for a highway and a graveyard, as to the right of the person making the dedication in the land dedicated while in use for the purpose designed. In this case we think, as before stated, that it was a dedication of the whole land enclosed for a public burial ground, without any reserved rights therein, as to disposition of lots or general management, while it should be so used ; and that such was the plain intention of Mr. Potwine. Whether he or his grantees had any right to the grass or fruit that may have grown on the unappropriated part, or a right to cultivate that part, so far as it could be done without interference with a reasonable use of the yard for burial purposes, is a question not involved in this case and not decided. We discover no error in the disposition of the question of costs by the County Court. The suit was brought to determine the rights of the parties upon the land in question. The damages were practically nominal, and were so found by the referee and treated by the court. The case is therefore within the provisions of section 18, ch. 33, Gen. Sts. In Sumner v. Cummings et al., 23 Vt. 434, Redfield, J., says: — “ We do not understand that [402] the matter of costs is one upon which courts have no discretion. We understand, in all cases, it is discretionary, to some extent, in what form, and to what extent, to tax costs.” Judgment affirmed.