Price v. Methodist Episcopal Church

Opinion of the court, by Judge Wrigiit : The complainants rest their claim in argument upon the following grounds: 1. That as purchasers of the privilege of burying in the yard, they thereby acquired a right to the exclusive use, each of a portion of the soil. 2. That this ground has been dedicated to public and pious uses, as a burying yard, and that the disturbing the repose of the dead is a public nuisance, shocking to the best moral and religious feelings of community, which can not be remedied by ordinary legal process. A.s to the first point. We are unable to perceive how the complainants could acquire any right to the soil, by the payment of' — 494 — the burying fees. That exaction, it does not appear, was ever made or yielded to, under any agreement, understanding, or expectation, on either side, that it was the purchase of any portion of the land. No conversation looking to that end ever passed between the parties, nor was any memorandum, conveyance, deed, or other instrument of ^writing, of any sale, purchase, or appropriation oí any portion of this ground, ever demanded or given by the parties. The probability is, these exactions were only made to defray the expense of keeping the ground inclosed and in repair; possibly for compensation to a sexton. But it is unnecessary to inquire into this matter further. At no period of time, since the first organization of government in the territory, now forming the State of Ohio, could title to real estate be acquired in the way claimed. The trustees of the church held this land as trustees only. The limit and extent of the trust was fully and clearly expressed in the deeds, which were formed according to the printed discipline of the society, in the possession of all the churches of the Methodist persuasion. The deeds were recorded in the county. The discipline and record were notice alike to the members of the church, to those dealing with it, and to all the worid, of the manner in which the trustees held these lots, and of the extent of their power over them. They had no right to use them for other purposes than those expressed in the deed; and if they undertook, expressly in terms, to sell and convey any part of the lots, in any other manner, or for any other purpose than is expressed in the conveyance, their acts would be void. Can it be successfully maintained that persons trading with trustees or others, standing only in fiduciary .relation to the subject of the trade, can acquire any more or greater rights than the trustees have powers to grant ? "We think not. The payment of money for interment is no uncommon thing, but has never been understood as the purchase of a right. It is a charge upon the estate of the deceased, and stands in place of an original contribution for the purchase of the ground, for repairs, and for protecting the ground. Comyn’s Dig., Cemetery, A. 3, B. 324, 326. ,If the claim of the complainants be placed on the ground of membership and contribution to the purchase of the lots, .it will not be -found npich more favorable. Property of this kind, acquired by the common contribution of the members of an ass.oci — 495 — ation, is subject to tbeir common control. No separate interest is acquired; and such property is managed by the majority. Even a vote to divide, gives to individuals *no right.to enforce any separate interest. Denton v. Jackson, 2 Johr's. Ch. 320-329. The interest of the members of the Methodist Episcopal Church, assimilates very near to that of pew-holders in a church. The right to pews is limited and usufructuary, and does not interfere with the right of the parish to pull down and rebuild the church. Freligh v. Pratt, 5 Cowen-, 496. Even an individual, not a member of the society, who purchased and paid for a pew, and occupied it thirty year’s, acquires but a qualified property in it, subject to the common control; and if it be determined to pull down the church, the minority of pew-holders have no remedy, unless it is done wantonly. Gray v. Baker, 1 Mass. 435; Daniel v. Wood, 1 Pick. 102; Wentworth v. Parish in Canton, 3 Pick. 344; Commonwealth v. St. Mary’s Church, 6 Serg. & Raw. 508; Mason v. Muncaster, 9 Wheat. 445; Terret v. Taylor, 9 Cranch, 52; Green v. Wilier, 6 Johns. 41. See also 4 Johns. Ch. 596, and 6 D. & E. 396. Upon the best reflection we have been able to bestow upon this branch of the question, we are brought to the conclusion that the complainants have failed to establish their right to the interference of this court by injunction. As to the second point. It is urged that the property has been dedicated to the public as a burying ground, under the act of the general assembly of Ohio, February 5, 1819, 17 Ohio Laws, 120, for incorporating religious societies. Section 4 of that act provides : “ That any lot or part of lot, obtained by any religious society, by purchase or donation, and set apart for the sole purpose of a burial ground, may be by them surveyed and platted, carefully noting its extent and situation, and be recorded by the recorder of the county in which the same is situated, which lot or burying ground, if it be occupied as such, at the time of recording, shall never afterward be sold, transferred or used for any other purposes." The complainants contend that the platting the fifteen ranges of burying blocks and the resolution adopting the plan brings this case within the statute of Ohio. We will examine this claim, as it regards the one hundred feet platted into burying blocks, and if it shall be found that the ^statute does not embrace that portion of the lots, it will hardly be contended it does the residue. Was the one hundred feet set apart for the sole purpose of a burying — 496 — ground? Was it platted and recorded? At the time it was recorded was it used as a burying ground? The lot was purchased for a meeting house or church; certain persons, members and others, were permitted to bury their deceased friends there. The conveyances not only give no authority for such burials, but contain express limitations of the trust to other uses that may be inconsistent with the use claimed. There is no evidence that the lot was ever, in fact, set apart for the sole use of a burying ground, or intended to be so set apart. It has never been recorded as a burying ground. By the minute of the society referred to, it appears that a plan of the blocks was exhibited containing fifteen ranges, which plan was approved; that the ranges and blocks were ordered to be designated at each end by stakes, etc.; that the plat should be deposited with one O. Smith, who should designate-future interments. The evidence does not show that the ground was ever finally surveyed and platted, or that the ranges and blocks were marked and designated by stakes, or otherwise, or their extent and situation arefully noted. There was no order for the record nor any record ever made. There is no order setting apart this ground for the sole purpose of a burying ground. The plan of the fifteen ranges may have been a rough sketch only, upon which the meeting may have intended to take further steps under the law; but we have no evidence that they did do anything more. The provisions of this act innovate upon the settled general law of acquiring title to real estate, and its provisions must be substantially followed, or no rights can be gained under it. ( The transfer of real estate to the public or to individuals, under the operation of law, without grantee or deed, can only be sustained where a clear case is presented, leaving no doubt of such legal operation. The requisitions of the statute are not satisfied by the acts of the trustees or society in the case before the court.. The substantial provisions oí the act have not been followed. But it is said that the trustees here shall not avail themselves of their own neglect to cause *their plat to be recorded to avoid thededieation claimed by the complainants. It is a sufficient answer to this assumption, to say that the law referred to, has not been complied with, in its other requirements. It will be time enough to decide that question when a case shall be presented where the-substantial provisions of the act have been all complied with, and — 497 — there appears only a neglect to place the plat on record. There is strong reason for supposing, however, that the placing the plat on record, and thus giving it publicity, is essential to the passing title to real estate under its provisions. The counsel for the complainants urge, with great earnestness, that the acts of the defendants amount to a dedication of this lot, to public and pious uses, which is to be sustained upon general principles ; and several adjudged cases are referred to as settling this claim beyond dispute. The case of "Woodyard v. Haddon, 5 Taunton, 125, is cited. In that case, the plaintiff had erected and opened a street, leading from a public highway across his own lands, and terminating at the defendant’s close. This had been used for twenty-one years, and had been paved and lighted at the public and private expense. It was claimed that this was a dedication to public use; but Chief Justice Mansfield was of a different opinion, and the jury found that the land had not been dedicated to the public. On a motion for a new trial the case was fully argued, and Judges Mansfield, Gibbs, and Heath decided that the land was not dedicated to the public, while Judge Chambre was of a contrary opinion. The opinion of Chambre is cited to us as the law of the case. The Town of Pawlet v. Clark et al., 9 Cranch, 292, is relied on. In that case there was a grant, by the crown, to sixty-three persons, of twenty-three thousand and forty acres of land, in the town of Pawlet, six miles square. The tract was divided into sixty-eight shares, four of which were reserved — one for a glebe of the Church of England. The court determined that the Church of England was not a body capable of receiving the grant eo nomine; that a grant at common law may be made to pious uses before a grantee is in existence, capable of taking; and if made by the crown, it could not be resumed at the pleasure of the crown. That the State of Yermont, which, after the revolution, succeeded to *the rights of the crown in the glebe, might alien the land, with the assent of the town; or might erect there an Episcopal church, and collate its parson, who would thereby become seized of the glebe, jure ecclesice,and become a corporation capable of transmitting the inheritance. T^e do not perceive the bearing this decision has on the case before the court. The legal dedication of land to the public use, without an individual grantee, we shall have no occasion to dispute. — 498 — In the case of McConnel v. Town of Lexington, 12 Wheat. 585 586, the court sustained the dedication of a spring for public use, without an individual grantee or written evidence, upon the reasonableness of the dedication. The lots in that town had been disposed of by lottery draft, and the court predicated their decision upon the concuirent testimony of all the settlers, that the spring was so reserved, and the universal opinion that no person had drawn the spring lot. The case of Beatty and Ritchie v. Kurtz et al., 2 Pet. 566, is most earnestly pressed upon our consideration as conclusive authority in the case at bar. In that case, Beatty and Hawkins, in 1769, laid out an addition to the town of Georgetown, the lots of which addition were laid down on a map, on which was sot apart a lot for the sole use of the German Lutheran Church, as their absolute right and property, to be held by them for religious purposes and the usp of the congregation. This plat was duly recorded, according to the laws of Maryland. Shortly afterward the Lutheran society took possession of the lot, inclosed it, built a church on it, and opened a burying ground. They had from thence continued to hold it upward of fifty years, and used it as a burying ground, without their title being called in question. They were put in possession by Beatty, who declared the lot to be the property of the Lutherans, and that he was ready to convoy the title; and both he and Hawkins died without claiming or disposing of said property. Ritchie, the heir, entered upon the lot and tore down the fences and tombstones, and was about breaking open the graves and removing the remains of the dead. The Lutherans •filed their bill to compel a conveyance of the lot in fee, to be quieted in their possession and use, and for an injunction upon the defendants *from interrupting or disturbing it. The court sustained the bill, on the ground that there was a dedication of the lot to public and pious uses. In this decision they make express reference to the laws and bill of rights in the constitution of Maryland, which gave validity “ to any sale, gift, lease, or devise of any quantity of land not exceeding two acres, for a church, meeting, or other house of worship, and for a burying ground, which shall bo improved, enjoyed, and used only for such purpose; ” and also to the laws of Maryland, for laying out and recording town plats, which contains similar provisions to the law of Ohio, on the ;same subject. The court determined that in such cases of dediea — 499 — tion it was not requisite there should be a legal grantee at the time of the dedication. That was a case of dedication by the ancestors of the defendants, at an early period, without grant, by designation on the original plat of the town, and the record thereof under the laws of Maryland. The Lutheran society were put in possession by the proprietors, and had quietly occupied for more than half a century, without interruption from them, and accompanied by their repeated declarations of the rights of the Lutheran society. After all which, the heirs of the proprietors were attempting to reclaim the possession of the lot, and to appropriate it to their own private use, on the ground that the title had never passed out of their aneestors.The court very properly determined, that in such ease-an individual-grantee was not necessary to an effectual dedication of the lot at law. Were a similar dedication made by the proprietors of a town in Ohio, under our statute, by designation on the plat of the town, and a record made according to the provisions of the act for incorporating religious societies, referred to by counsel, we should without difficulty find an analogy of principle, sustain the dedication,-and exercise the same power to-restrain undue interference with the public or church rights, acquired under the dedication. And in the present case, if Kirby, the grantor, or his heirs, were seeking to reclaim these lots, as forfeited by the burials which have been made in this yard, we should not hesitate to restrain them. The learned and eloquent Judge Story, in closing the opinion of the court, in the case last referred to, remarks: *“ This is not a case of a mere private trespass ; but a public nuisance, going to the irreparable injury of the Georgetown congregation of Lutherans. The property consecrated to their use, by a perpetual servitude or easement,-is to be taken from them; the sepulchres of the dead are to be violated; the feelings of l’eligion, and the sentiments of natural affection of the kindred and friends of the deceased, are to be wounded; and the memorials, erected by piety and love to the memory of the good, are to be removed, so as to leave no trace of the last home of their ancestry, to those who may visit the spot in future-generations. It can not be that such acts are to be' redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery, operating by its injunction to preserve the repose of — 500 — the ashes of the dead, and the religous sensibilities of the living.” With these sentiments and feelings we fully accord, and where a case is presented analogous in principle, shall be ready to apply the proper remedy. But the case in hearing bears no analogy tc the Lutheran case. It is governed by certain fixed principles of law, over which this court can exert no control. By a recurrence to the title papers, a part of this case, all must clearly perceive the nature and extent of the grant made by Kirby and wife to the trustees of the Methodist Episcopal Church. The object and limit of the estate granted in trust, is in the deed defined and distinctly marked out. The trustees “ shall erect and' build, or cause to be erected and built, a house or place of worship, for the use of the Methodist Episcopal Church of' the United States,” according to the rules and discipline of said church, at its general conference, and to maintain the same forever, permitting the preachers and ministers, authorised by the general or yearly Conference of said church, to expound God’s holy word therein, and none others. Nothing is said in either of these deeds or dedications of trust on the subject of any other use whatever. In the Lutheran case, the dedication was to the use and benefit of the Lutheran Church, to be their absolute right and property, and held for religious purposes and the use of the congregation. In Kirby’s declaration of trust, the erecting and maintaining a place of worship for the member’s of the Methodist Episcopal Church, according to the rules and discipline of *their conference or government, is the main, if not the only object of the grant. There is no ambiguity in the terms of the grant, or room for any latitude of construction. No other use or purpose is expressed. Can a court of chancery change a trust expressly declared by the grantor in trust ? It may enforce the trust, and compel the execution of its provisions, according to the design and purpose of the grantor, but can it divert the trust, and so construe it as to defeat and thwart the object and purpose of its creator? We think not. The trustees Of the Methodist Episcopal Church take these lots under Kirby’s deeds in fee, as trustees of an expressed trust, limited and declared on their face. There is nothing left to implication or inference. It is an admitted principle, not only that the rules of property should be the same in equity as at law, but that the rules of construction Should be so likewise. Courts of equity, therefore, when trusts are actually and finally — 501 — limited, generally follow the rules of the courts of law. Jeremy’s Eq. Jur. 30; 2 Burr. 1108; 14 Viner’s Ab., title Intent; 2 Ves. Jr. 655, and 1 Jacob & Walker, 571. If this be correct, and we believe it is, let us inquire whether at law we could extend this trust, so as to cover individual or public rights, resulting from use and occupation, not only beyond the trust expressed in the deed, but inevitably tending to the destruction of the trust itself. It will not be seriously contended, that a court of law could do this. If, then, the rule of property and construction is the same in this court as in a court of law, there would seem to be an end of the inquiry. The trust expressed in the conveyances must govern ; and unless we can find some general expression in the trust, embracing the claims set up by the complainants, we can afford them no aid or relief. We have looked in vain for any such claim or expression. Injunctions are not allowed where the complainant’s right is doubtful, nor unless he show a vested title, legal or equitable, or such a public interest which any one may ask to have protected. Corporation of New York v. Mapes, 6 Johns. Ch. 50; Storm v. Mann, 4 Johns. Ch. 21. The complainants in this cause have shown no such interest or right. The express trust declared by Kirby, being to secure, forever, a church or place of worship for the members of the *Methodist Episcopal Society, we conceive it to be within the legal and equitable construction of the trust, to allow the trustees, as the society increases in numbers, and its exigencies require, to enter upon the lots granted, in order to erect a new and larger edifice than the one originally erected. The kind of building adapted to the convenience of the society, and the part of the lot on which it shall be built, are matters necessarily and legally left to the sound discretion of the trustees, aided by the advice of the congregation. They must be taken to act in good faith, until the contrary be alleged and proven. We can never presume their acts wanton, in the absence of all evidence. No such inference can be drawn from the vote of the society, and the resolution of the trustees, to build a new church. We should incline to restrain them from any wanton breaking up of the graves in this yard, though we see no necessity for deciding this question now. From the view taken of this case, it results that the trustees have a legal and equitable right, under Kirby’s deed of trust, to determine, in good faith, the necessity of erecting a new church or place of worship, its dimensions and site, having regard to the — 502 — convenient enjoyment, by the society, of the lots, for the .purpose of the grant; that, in order to execute the trust fairly, they may so far interfere with the interments made on the lots as may be necessary to lay the foundations of the new chui'ch; and in executing their work, they may disinter,' and decently remove the remains of any dead within such limits — forbearing any act calculated to shock the feelings of surviving friends or the public. ¥e do not intend to express any opinion, encouraging the idea that the trustees of the Methodist Church can appropriate this ground to any other purpose than the erection and maintenance of a suitable and convenient church for the society, upon the plan' agreed upon by the society, or the trustees; nor further interfere with, or disturb the remains of the dead, buried there, than is necessary to effect that object. The bill is dismissed, and the injunction dissolved. Each party to pay their own costs. N. B. Judge Collet, who allowed the provisional injunction in the above, cause, was present when the decision was made, and concurred with the court in the principles decided.