USA > New Jersey > Essex County > Newark > An history of the Old Burying Ground as contained in the case of the Attorney-General against the city of Newark, 1888 > Part 3
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And this defendant charges and insists that the ground which had thus been devoted by the people to burial purposes had become wholly unsuitable for this purpose,
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and that it was the right and duty of the town authori- ties to discontinue interments therein, and that it sub- sequently became necessary, for the protection of the health of the city, the preservation of public morals, as well as for the protection of the remains of the dead buried in these grounds, that they should be removed to a more suitable place for interment ; and being author- ized by the legislature to make such removal, this defend- ant charges that it has full power and authority to do so without regard to the question of title. That neither the old settlers or their descendants had any private rights in these grounds, or any rights arising out of contracts, and that the public authorities of the city had the right to remove the remains deposited therein whenever in their judgment the public good required it.
18. And this defendant, further answering, says that among the other tracts of land which were intended to be conveyed by the Proprietors of East Jersey to John Curtis and others, by their deed hereinabove set out, was a tract of land described as follows :
" Another triangle peece Alotted for a watering place for cattle, Begining at John Plum's corner and running up the brooke west seaven chaines; thence east and by north seaven chaines to the highway, and at the east end one chaine three rodes, bounded south by John Plum, and Robert Daglish, North and East by highways."
The title to which was vested in the inhabitants of Newark by the aforesaid act of eighteen hundred and four; and this defendant says that the tract of land so allotted for a watering place for cattle was, by the said deed and the said act of the legislature, the property of the township of Newark aforesaid, and was in the same situation as was the tract of land in dispute in this cause, and that in order to enable the inhabitants of the town- ship of Newark to sell the same, the legislature of the
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State of New Jersey, on the twenty-eighth day of No- vember, eighteen hundred and nine, passed an act en- titled " An act to enable the inhabitants of the township of Newark, in the county of Essex, to sell a lot of land therein mentioned," of which the following is a copy :
" Whereas, it is represented to the Council and Gen- eral Assembly, that a certain lot of land lying and being in the town platt of the township of Newark, in the county of Essex, known by the name of the watering place, is not at this time, nor has it been for many years last past, used for the purpose for which it was originally appropriated, nor is it any longer wanted for that use, and that the inhabitants of said township are desirous of selling the same, and disposing the money arising from the sale thereof to some other public use, and that as the law now is the said inhabitants have not authority, with- out legislative aid, to sell the same; And whereas, appli- cation hath been made to the Council and General Assem- bly in behalf of the inhabitants of the said township, in conformity to vote of the said inhabitants of the said town- ship, passed at the annual town meeting in April last past, for the law to enable them to sell and dispose of said land in fee simple ; therefore,
"SEC. I. Be it enacted by the Council and General As- sembly of this State, and it is hereby enacted by the au- thority of the same, that the inhabitants of the township of Newark, in the county of Essex, are hereby author- ized and empowered to sell and dispose of in fee simple, a certain lot of land lying and being in the town platt of the township of Newark, in the county of Essex, which lot is included in a grant from the Proprietors of East New Jersey, to John Curtis, John Treat, Theophilus Pierson and Robert Young, for the use of the old settlers of the town of Newark, bearing date the tenth day of December, in the year of our Lord one thousand six hundred and ninety-six, in which grant the said lot of
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land is denominated a 'watering place for cattle,' and is described as a triangular piece, bounded south by John Plum and Robert Daglish, and east and north by high- ways. The legal title to the said lot of land among other lands contained in the said grant, being vested in the inhabitants of the said township of Newark, in the county of Essex, as incorporated by law, a certain act of the leg- islature of the State of New Jersey, passed the fifteenth day of February, in the year of our Lord eighteen hun- dred and four.
"2. And be it enacted, That it shall and may be law- ful for the members of the township committee of the said township of Newark, in the county of Essex, for the time being, they being thereunto hereafter authorized by a vote of the inhabitants of the said township of Newark at an annual meeting, to execute under their respective hands and private seals, in the name of the inhabitants of the said township of Newark, proper deed or deeds of conveyance in fee simple to the purchaser or purchasers of said land, which deed or deeds of conveyance so made and executed shall convey to and vest in the purchaser or purchasers all the right, title and interest of the inhab- itants of the said township of Newark, of, in and to the said land forever.
"3. And be it enacted, That the monies arising from the sale of the said land shall be laid out and expended by the township committee of the said township of New- ark for such public permanent purposes, in the town platt of the said township of Newark, after paying to the town committee of the township of Orange such proportion- able part of five hundred dollars heretofore expended in law-suits for the recovery of the before mentioned town lands, as shall appear to have been paid by the inhab- itants residing in the district now the township of Orange, and formerly a part of the township of Newark, afore- said, to be ascertained on comparing the duplicates of
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rateables of each of the said townships of Newark and Orange of the present year, eighteen hundred and nine, as the inhabitants of the said township of Newark in an annual or other lawful town meeting shall order and direct, on ten days' notice having been given in the pub- lic papers printed in the said town of Newark, of an in- tended motion to be made in said town meeting for that purpose, pointing out the particular object of the said motion, provided that the inhabitants of the said town- ship of Newark in lawful town meeting assembled, may in case they shall think proper so to do, apply five hun- dred dollars, including the payment to the township of Orange as aforesaid, out of the monies arising on the sale of the poor, or other lawful expenditures of the said township, that sum having been heretofore expended by the said township in law-suit respecting the said land."
19. And this defendant says that by virtue of the said act, the town committee of the said township of Newark divided the said watering place into suitable sized lots and sold the same for the sum of fifteen hundred dollars, and made title thereto to the several purchasers thereof. And this defendant says that the said plot of land known as the watering place, was held by the public in the same manner in which the said tract of land in dispute was then held, and is now held, and that no one ever questioned the right of the legislature or of the township authorities to make the disposition of the said tract which they did make. And this defendant says that the action of the legislature and of the public in relation to that land is a precedent for what is now claimed by this defendant in this suit, and is a practical construction of the rights of the public in relation thereto, and that it is not now com- petent for the Attorney-General or for the relators named in the bill of complaint herein to question the same, or to interfere with the action of this defendant, which has been determined on as aforesaid. And this defendant,
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further answering, says that the legislature of this State in the exercise of its sovereign power, has full right to discharge any lands which have been devoted to special or particular public uses, and to authorize a change in the use thereof, and that the legislature of this State has exercised this right, and has authorized the sale of lands held not only by the public but private corporations for particular uses, freed and discharged from any trust in a great number of instances, as will appear by a reference to the public laws of this State, published by the au- thority of the State, to which this defendant begs leave to refer. And this defendant, further answering, says that the exhibit hereto annexed marked "A," shows the " Home Lots" of the old settlers as they were laid out and allotted as shown by the town records or town book before referred to, and the lot set apart for a burial place now called the " old burying ground," which lot is thereon designated as lot " A," and that Exhibit " B," hereto an- nexed, which is made from actual surveys and measure- ments, shows the " old burying ground," as it now is, with the encroachments that have been made thereon ; that the part thereof colored in blue is now in the possession and occupation of persons or corporations, claiming to be the owners thereof, and to have absolute right and title thereto; that the names of the persons claiming such title and ownership are shown thereon, as far as this de- fendant has been able to learn the same, and that lines indicating their present possessions are correctly shown on said exhibit.
And this defendant further shows, that the ground thus occupied and claimed by said persons covers a large part of the tract originally set apart for the burial place, as shown on Exhibit "A," and that as matter of fact the buildings erected on these lots, so owned and claimed, occupy a part of the ground in which interments were formerly made, and that in making excavations for the
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said buildings, the remains of bodies interred in what was originally set apart for a burial place by the old settlers, as before stated, have been removed in many instances.
And this defendant, further answering, says that it has no knowledge, except from said bill, whether the relators are, or whether any of them are heirs or descendants of any of the old settlers, and leaves them to make such proof thereof as they may be advised is necessary ; but this defendant says that if they are such heirs, that they have by virtue of their relationship no right in the prem- ises as cestuis que trust or otherwise, and that they have no standing in this Court as complainants or relators.
And this defendant, further answering, says that the Attorney-General has no standing in this Court as the representative of the State, to seek to enjoin this defend- ant as prayed in the said bill; that the State has by its legislature given to this defendant express authority to do the acts complained of, and can only revoke this authority or interfere with its exercise by an act of the legislature. And this defendant prays that it may have the same benefit of this defence as if it had demurred to the said bill.
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This defendant, therefore, claims that it is proceeding strictly according to law; that it is not violating any private right, or neglecting any public duty in what it has done or proposed to do in the premises, but that in the removal of these remains, and their decent and proper interment in a suitable and proper place, it is moved by considerations alike respectful to the dead, whose bones have been so long neglected and insulted, and to the living, in removing what has long since become a public nuisance ; and it prays that it may be hence dismissed with costs.
JOSEPH E. HAYNES, Mayor. [L. S.] JOSEPH COULT, City Counsel.
Attest :
S. H. PEMBERTON, City Clerk.
In Chancery of New Jersey.
FEBRUARY TERM, 1887.
Between
JOHN P. STOCKTON, ATTORNEY-GENERAL, AND OTHERS,
Opinion.
v.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK.
Bill for injunction. On order to show cause upon bill and answer.
Messrs. CORTLANDT & WAYNE PARKER, for relators. Mr. JOSEPH COULT, for defendants.
THE CHANCELLOR: This suit is brought by the At- torney-General by information, at the relation of Henry Congar and others, and by the relators as complainants, against The Mayor and Common Council of the City of Newark, to establish a trust in certain land in Newark, known as "The Old Burying Ground," and to restrain the defendants from removing from that land the remains of persons buried there, and to compel the defendants to keep and maintain the ground in decent and proper order so as to protect the remains and memorials therein from desecration. The bill states that the relators and com- plainants are citizens of Newark, and heirs and descend- ants of the old settlers of the town of Newark, and they bring suit not only for themselves but also for the benefit of all such other citizens, heirs and descendants as may be made parties, and for the protection of the charitable use to which the burying ground was, as they allege, devoted.
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The bill states that on the tenth of December, 1696, shortly after the settlement of the town, the Proprietors of the Province of East New Jersey, in pursuance of the concessions to actual settlers thereof theretofore made by them, granted to John Curtis, John Treat, Theophilus Pierson and Robert Young, of the town of Newark, cer- tain parcels of land in Newark for public use, among which was a tract including the land in question, which tract is described in the deed as "all that small tract therein alotted for the bureing place, takeing in the pond and meeting house, being seaven chaines in length and foure chaines in breadth, bounded west by John Treat, south by John Johnson, north and east by highways ;" that as to that land the grant was made and was in the deed declared to be made, to the grantees and their heirs, to the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns forever, in common, and that it was also therein declared that the land was granted to be and remain for the use in the deed expressed and to be appropriated to no other use or uses whatever. The complainants allege that the greater part of that tract was then and thereafter used for and devoted to the use of a burial place for the people of the town, those who settled the place, the old settlers, and their heirs and assigns, and that it has been reserved and kept for such purpose, and has been known as " The Old Burying Ground," and that there have been buried in it from time to time deceased persons, people of the town, old settlers, and their heirs and descendants, and that the memorials of such deceased persons have been erected there, and that some of them still remain; that about the fifteenth of February, 1804, the legislature of the State, for the pur- pose of vesting the legal estate in the property upon the same trust and to the same use upon and to which it had been granted, passed an act by which it was recited that the inhabitants, the first settlers of Newark, on their first
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settlement, after purchasing all the lands lying within the bounds of the town of the native Indians, proceeded to parcel them out among themselves and such settlers as thought proper at various times to settle in the town, ac- cording to the rules and regulations established by the first settlers respecting their admission, at the same time reserving certain portions of land in various parts of the town for public purposes ; and that doubts having arisen as to the validity of the Indian title, it was afterwards thought advisable by the inhabitants of the town to take a grant from the Proprietors of East New Jersey for the confirmation of their rights to that public land, and that as the inhabitants of the town were not incorporated, and were incapable of taking a legal estate, it was thought advisable to take the grant in the names of certain trus- tees for the use of the inhabitants, which grant was ac- cordingly taken on the tenth of October, 1696, in the names of John Curtis, John Treat, Theophilus Pierson and Robert Young, to have and to hold to them, their heirs and assigns forever, to the only proper use, benefit and behoof of the old settlers of the town, their heirs and assigns forever, in common, (the lands) granted to be and remain to and for the several uses therein particu- larly expressed, and to be appropriated to no other use or uses whatsoever ; that the original trustees were all dead and the heir of the survivor not known to be resident in Newark, and that through the ignorance of those infant times the use created in the grant, although really meant for the benefit of the inhabitants of the town of Newark and their successors, yet was so inartificially expressed as to render it difficult for the then inhabitants of the town, as incorporated by law, to assert their rights to the prem- ises ; by means whereof the lands contained in the grant, and originally reserved by the first settlers for public pur- poses, were exposed to encroachments and other injuries without a competent remedy therefor, either in law or
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equity, and it was thereby enacted that the trust estate vested in the trustees, their heirs and assigns forever, by the deed from the proprietors, for the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns forever, should thence- forth cease and be void, and that the estate so vested in those trustees, their heirs and assigns forever, should be vested in the inhabitants of the township of Newark, in the county of Essex, as incorporated by law, and their successors forever, and that they were thereby vested with the legal title thereto as fully and absolutely as though they had been originally named in the grant in the place of the original trustees, saving the rights of bona fide purchasers, without notice of the trust ; pro- vided that nothing in the act should in any way extend to or affect the parsonage lands described in the grant, or such parts of the burying ground as had been leased or sold by the First Presbyterian Church in Newark, before the first of January then last, or the ground upon which the market then stood. And it was thereby further en- acted that the estate vested by the act in the inhabitants of the township should be appropriated and forever remain to and for the several uses in the before mentioned original patent (the deed from the proprietors) expressed, and for no other use or uses whatsoever. The bill further states that in eighteen hundred and thirty-six the city was incorporated, and thereupon, by force of the laws of this State, became subject to all the responsibilities of the township and succeeded to the duties of the inhab- itants of the township as trustees; that it thus obtained the legal title to the land in question, and that it was its duty to protect and preserve the property to the uses to which it was originally devoted, but that it has not only neglected its duty in that behalf, but now proposes to remove the remains from the ground and devote the land to use as a public market, for the sale of meat and vegeta-
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bles, and to let it out for hire for those purposes accord- ingly, and that its action in the matter is under an act of the legislature passed in eighteen hundred and eighty-six, and obtained by the city itself, by which it was enacted that where lands held by the cities or municipalities of this State for burial purposes, are or may be affected by any trust that they shall be devoted to that use, and in the judgment of the Common Council, or other govern- ing body, the public good will be served by devoting such lands to other public uses, it shall and may be lawful in every such case to use such lands for any public purpose or use to which in the judgment of the Common Council, or other governing body, they are best adapted ; and that in case interments have at any time been made in such lands, or any part thereof, the Common Council or other governing body shall cause the remains so interred to be removed to some suitable and proper burial place, and make proper and reasonable provision therefor and for the protection thereof, and to that end may make such reasonable appropriation of public moneys as may be necessary.
The bill attacks that act upon the ground that it is really a private, special and local law within the meaning of the constitution, and alleges that there are no other cities or municipalities in this State, except the city of Newark, which hold land in trust for burial purposes ; that no public notice was given of the intention to apply for the act nor of the object of it, and that the passage of the act was forbidden by the constitution of this State, because of the want of such notice and because the act vacates public grounds.
The answer states that first settlers came in May, 1666; that soon after they came they laid out the land of which they had taken possession without leave or license, claim- ing it by occupation, and divided it among themselves into what they called home lots; that in order to secure a
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more perfect title they bought the land from the Indians and took from them three conveyances therefor, one in 1666, and the others in 1667; that in laying out the town site they reserved streets, squares and public places for the common benefit of the people of the town; that among the portions so allotted was the tract set apart for a church and burial place, and that that was common property ; that soon after the settlement the only build- ing for religious worship in the town was built upon the property, and that in accordance with the original design of the settlers the bodies of all the settlers who died were there interred, and that the property was common to all the inhabitants-the meeting house for worship and the burying ground for interment ; that up to 1713 the form of government of the town was a pure democracy, in which all who lived in the settlement and were entitled to a vote were obliged to participate; that in that year the inhabitants of the tract then known as the town of Newark were incorporated by royal patent, by the name of the " Trustees of the Freeholders and Inhabitants of the Township of Newark," and the government was thence forward to 1798, carried on under that charter; that in the last mentioned year the township was incorporated, and that the city was incorporated in 1836; that from the earliest settlement the land in dispute or portions thereof were used as a burying ground and interments were made in it from time to time of the bodies of per- sons who were inhabitants of the town, but that it was always common property under the control of the public ; that the settlers denied the right of the Indians, although they took the before mentioned deeds from them, and they denied the right of the proprietors, and they held possession for over thirty years before they took from the proprietors the deed mentioned in the bill, which they took as a merely confirmatory conveyance ; that it was not intended that that deed should impose any unalter-
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able trust upon the property in question, or impress upon it a perpetual use, but the answer alleges the words relied upon in the bill to establish the use are merely words of description, denoting the use to which the inhabitants of the town had put the land, and were used in order to designate them with absolute certainty; that after the making of the deed of the proprietors the land continued to be used by the public in the same way and to the same extent as before that time, and that in consequence of the doubts which had always existed as to the right and title of the public thereto and to quiet the title, the act of 1804 was passed ; that subject to such limitations as were by that act put upon its power, the city had a lawful right and full authority to take such measures as were expedient for the care and custody of the grounds, and the preservation of the remains and monuments therein ; that the tract lies in the heart of the city, and is sur- rounded by the most populous and valuable portion of the city; that no interments have been made there for many years, and that on account of the peculiar situation and location of the property it has now become unsuit- able for burials; that originally the whole of it was used in common by the people of the town for purposes of worship and interment, but as the land grew more and more valuable encroachments were made upon the Broad and Market street fronts, which are now, with a small ex- ception, covered with business buildings in which large amounts of money are invested; that in making such encroachments the persons who claim to be the owners of the buildings have actually erected them upon parts of the land in which interments were made, and that it has been impossible for the city to protect the property from des- ecration; that it has been and is now open to the com- mon use of the public, and is used as a rendezvous for immoral persons and as a depository for rubbish, and for a long time has been a public nuisance, and that by virtue
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