Partridge v. First Independent Church

Alvey, J., delivered the opinion of the Court. It being conceded that the proceedings for the sale of the burial ground or cemetery of the First Independent Church of Baltimore, were under the Act of 1868, chapter 211, and were in all respects regular, and in conformity to the requirement of that Act, the only questionsarising on this appeal are : 1st, as to the nature and extent of the interest of the lot-holders; and, 2nd, whether, and to what extent they are entitled 'to distribution of the proceeds of sale, for and in respect to improvements placed on the lots. 1. In determining the first of these questions, we must look to the muniments of title. The ground, the proceeds of the sale of which are now in question, was conveyed to the First Independent Church of Baltimore, by Robert Oliver, by deed dated the 22nd of August, 1821. By this deed the ground was conveyed in fee, and without any declaration of use or trust whatever. It would appear, however, that the church corporation dedicated the ground thus acquired to the purposes of burial of the dead, and we may suppose that the ground was purchased for that purpose alone; and to those purchasing the right of burial therein, a certificate was issued, whereby it was certified that the party to whom it was issued was the proprietor of a certain designated lot in the Cemetery of the First Independent Church of Baltimore, and that such lot was granted and conveyed by the church to the party, his heirs and assigns, forever; subject to the regulations of the trustees of the church. This certificate was neither under the seal of the corporation, nor acknowledged, nor recorded; but was simply signed by the chairman of the trustees, and attested by the register. [637] What right or interest did this certificate confer upon its holder? We think it clear that it conferred no title or estate in the soil; nor could it operate as a grant of an easement, because it was not under seal, nor was it acknowledged and recorded, so as to be effective to convey such an interest. Hays vs. Richardson, 1 Gill & Johns., 336. The right to an easement must be founded upon a grant by deed, or upon prescription, for it is a permanent interest in another’s land, with a right of enjoyment; whereas a mere license is but an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein. 3 Kent Com., 452. At most, then, the certificate, such as we have here, conferred only a privilege or license to make interments in the lot described exclusively of others, as long as the ground remained a burying ground or cemetery. Whenever, therefore, by lawful authority, the ground ceased to be a place of burial, the lot-holder’s right and privilege ceased, except for the purpose of removing the remains previously buried. This is the principle announced in Kincaid’s Appeal, 66 Penn. St., 411, in reference to a certificate like the one before us, and we can have no doubt of its correctness. In that case, the Court, in speaking of the right conferred by the certificate, said: “The lot-holder purchased a license — nothing more — irrevocable as long as the place continued a burying ground, but giving no title to the soil. Whether it was an incorporeal hereditament descendible to him, or passed on his death to his personal representative, it is unnecessary to decide. While the license continued he could, perhaps, bring trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers. But 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 [638] the bodies and monuments to some other place of his own selection, or that, bn his failing to do so, such removal should be made by others. He accepted the grant or license subject to this necessary condition.” To the same effect are the cases of Windt vs. The German Reform Church, 4 Sandf. Ch. Rep., 471, and Richards vs. The Northwest Protestant Dutch Church, 32 Barb., 42. 2. Such then being the nature of the right acquired by virtue of the certificate, the next question is, whether the lot-holder is entitled to compensation or reimbursement, out of the proceeds of sale of the burying ground, for improvements or erections placed on his lot? By the decree-of sale, the trustees were required, before making the sale, to be satisfied that all the bodies interred in the ground had been decently removed and reinterred elsewhere, at the cost and expense of the church corporation, except in those cases where parties concerned preferred to have their dead removed under their own direction, and at such cost as they might think proper to incur. This preliminary condition, of having all the bodies removed and reinterred, we take it for granted, was duly performed. And it would appear, that, before the bill was filed for the sale of the ground, the appellants had removed their dead and placed them elsewhere; and that, in making the sale, the vault constructed by the father of some of the appellants, at a cost of about $1800, was expressly excepted and reserved by the trustees, for the benefit and protection of the appellants, with the right to remove the same. It is in respect to this vault that the claim is now made. The appellants, by their petition, pray that out of the proceeds of the sale of the burying ground, they may be allowed such sum as will enable them to construct elsewhere a vault similar to the one constructed on the ground sold. We are not aware of any principle upon which this claim can be allowed. There can be no application to [639] this case of the principle upon which beneficial improvements are allowed for; nor is the nature of the privilege, evidenced by the certificate, such as to entitle the holder to any distributive proportion of the proceeds of the sale of the estate itself. The most that the lot-holders could claim to receive is the price paid by them for the license. If their interest was in the estate, then they would be entitled to distribution according to that interest; but as they had no interest in the estate, and only an authority to do certain acts on the land, they can claim no part of the proceeds of sale, as being the equivalent of any interest therein. And when the Act of 1868, chapter 211, directs that the proceeds of sale shall be distributed “among the parties interested according to their several interests, as the same shall be shown to the Court,” it is meant such interest in the land sold as would be represented by a fair and just proportion of the proceeds of sale. If this cemetery had been sold simply from motives of gain or convenience to the church corporation, and against the consent of the lot-holders, then, perhaps, the right to compensation for all reasonable outlay for improvement and adornment of the burial lots could have been asserted ; but, by the Act under which the sale in this case was made, it was a condition upon which the decree could pass, that it was necessary, and would be for the interest and advantage of the parties interested, that the ground should be sold. These conditions, it is conceded by the appellants, were shown to exist. It was not, therefore, a mere matter of gain or caprice on the part of the church corporation that the ground was sold. All monuments and erections capable of being removed, placed on the burial lots under a license like the present, would be regarded as the personal property of the lot-holder ; and he would have the right to remove the same, upon the lot ceasing to be used for the purposes of burial. [640] This would seem to be a well established principle. Barnes vs. Barnes, 6 Vt., 388; Ashman vs. Williams, 8 Pick., 402; Prince vs. Case, 10 Conn., 375. To the assertion of this right the lot-holders must resort, instead of claiming compensation for the cost of the erection or improvement. The decree appealed from will be affirmed, but without costs. (Decided 3rd March, 1874.) Decree affirmed.