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 4
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of its general control over the grounds and under the terms of the act of 1886, the city has determined that the general good of the community and all considerations of respect for the memory of the early settlers of New- ark, whose bodies are buried there, require that the use to which the premises have been so long devoted should be determined, and that proper measures should be taken to care for the remains of those deceased persons, and to perpetuate their memories ; that the city proposes to re- inter the remains to be removed in an appropriate place and erect a suitable monument over them; that it pro- poses to occupy the land for a market, but only tempo- rarily, and that it intends to get another place for such market hereafter and to relieve the land in question from use as a market place.
It is evident from the foregoing full statement of the main contents of the pleadings that the city has no title to the land in question except such as it may have under the act of 1804, and the charter which provides that the Mayor and Common Council and their successors shall, by virtue of their charter, become and be absolutely and completely vested with, possess and enjoy all the lands, tenements, hereditaments, property, rights, causes of action and estate whatsoever, both in law and equity, in possession, reversion or remainder, which at the time of the passing of the charter were vested in the township as a corporation, according to such estate and interest as the township as a corporation at the time of the passage of the charter had or of right ought to have therein. P. L. 1836, p. 185, and P. L. 1857, p. 117. If the title to the land was held by the township under the act of 1804, merely in trust for the purposes of the charity, (use as a burial ground,) the city holds it in like manner and upon the same trust. But it is urged by the answer that the city holds it irrespective of the act of 1804, as public property generally, without the impress of a trust
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or devotion to any particular use upon it. This claim cannot be sustained. How did the city get title if not under the act of 1804? And what title has it except such title ?
Before that act the title was in the grantees under the deed from the proprietors or the survivors or survivor of them, or the heir at law of the last survivor. If it be conceded that the Indian title is valid, the city has no title to the land under it.
If the land was dedicated to public use as a burying ground by the old settlers, the power of the city over it under such dedication is only for the protection and reg- ulation of the public use. It cannot sell the land nor release or extinguish the use for which the land was ded- icated, nor employ it in any way variant from the purposes for which it was designed. Trustees, &c., v. Hoboken, 4 Vroom, 13. Under the act of 1804, the title was vested in the township as a corporation, to be appropriated and forever remain to and for the several uses expressed in the deed from the proprietors, and for no other use or uses whatever.
The city, if it took the title under that act and its charter, took it subject to that provision and with that trust impressed upon it. In Montpelier v. East Montpelier, 27 Vroom, 704, it was held that land held in trust by the original town of Montpelier did not pass to the new towns of Montpelier and East Montpelier, created out of the territory of the original, town, (the Court held that by force of the provisions of the act the original town ceased to act,) although the act provided that all property then owned and possessed by the original town should be thereafter owned and enjoyed by the new towns in cer- tain proportions. The city then, if it holds the title in trust, holds it for the use of the property as a burying ground and for no other use whatever, unless the act of 1886 has given it the power to abolish the use.
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That act is an act to destroy the trust. If it be con- ceded that there is no valid objection to it on the grounds mentioned in the bill, (a subject which it is not necessary to pass upon at this time,) and the act be regarded as a general law, it may be characterized as an enactment em- powering the municipal authorities at will to destroy the trusts in all such cases. As such, it is in my judgment unconstitutional. It is not within the power of the leg- islature to abolish such trusts as that on which the city, if it has title to the old burying ground, holds that prop- erty. It is established law that if a grant is made to a municipal corporation charged with a trust in favor of an individual, private corporation or charity, the interest which the cestui que trust or beneficiary has under the grant, may sustain it against legislative revocation ; a vested equitable interest being property in the same sense and entitled to the same protection as a legal interest. Cooley Const. Lim. 278. It Montpelier v. East Montpelier, 29 Vroom, 12, it was said that grants of property to municipal corporations in trust for other purposes than corporate and municipal use, are no more the subject of legislative control than are the private and vested rights of individuals. It is urged on behalf of the city that this act may be supported under what is known as the police power of the legislature, by virtue of which it may, to protect the health of the public, exercise directly or by delegating it to the municipality, the power of direct- ing the removal of bodies from a graveyard. It is enough to say on this head that the act is not an exercise of that power. According to the answer it may be remarked, no interments have made in the ground in question for nearly sixty years.
The act provides that when lands held by the cities and municipalities of the State for burial purposes are or may be affected by any trust that they shall be de- voted to that use, and in the judgment of the Common
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Council or other governing 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 use to which, in the judgment of the Common Council or other governing body, they are best adapted.
This is not a grant based upon the power to prevent or abate nuisances, but construed as the defendants construe it, it is a gift of power to the Common Council or other governing body to put (entirely at their discretion) land granted to the municipality in trust for burial purposes, whether located in or out of the city or municipality, to any or other public use to which they may think it best adapted, and that, too, without reference to any consid- eration of the public health to justify it. Nor can it justly be claimed that in view of the fact that no inter- ments have been made for so long a period (since 1829) the use has ceased. The object of burial is not to put the dead away temporarily merely, but to place them in a final resting-place.
When land is given in trust for a burial place it obvi- ously can by no means be said that the trust is at an end when the last body which can be buried in it has been deposited. The expectation in the burial of the dead is that they are to remain permanently, and the unauthor- ized disturbance of their remains is regarded with abhor- rence as a desecration, and is criminal.
In Campbell v. Liverpool, L. R. 9 Eq. A trust for a burying place devotes the ground to the perpetual repose of the remains of the dead. It dedicates it to uses of the most sacred character. The burying ground is God's acre. 579, by act of Will. 3, land belonging to the parish of Liverpool was set apart and dedicated to the use of a burial ground, and by the sentence of consecration the corporation renounced all right to the land. In 1854 the ground was closed against burials by an order in council.
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In 1866 the corporation being authorized to take a part of the ground under an improvement act refused to pay for the land to be taken, on the ground that the land re- verted to the corporation on the closing of the ground against burials, and that on such closing the use came to an end ; it was held that the land had been dedicated forever to the use of a burial ground, that there was no reverter to the corporation, and the Court would, if necessary, pre- sume a conveyance of the legal estate.
See also Moreland v. Richardson, 24 Beav. 33. Mani- festly the fact that the place in question has become a nuisance from the neglect by the city of its duty to take proper care of it is no reason why it should now be per- mitted to go still further and destroy the use altogether. By an act of March 3d, 1848, (P. L. 1848, p. 152,) the fact that the city had authorized or permitted encroach- ments upon the ground was recognized, as also the fact that it derived revenue for such encroachments, and it was provided that it should be the duty of the Mayor and Common Council to protect and preserve the ground as then enclosed and the enclosures thereof. It may be added that the nuisances mentioned in the answer are all of them such as the city may prevent.
An injunction will be allowed according to the prayer of the bill.
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A charitable use, derived from the public, vested in trust in a municipality, it also being the beneficiary, may be transmuted to other municipal purposes, with the sanction of the legislature.
If the trustee of a charitable use be about to alienate or trans- form the property so as to carry into effect, in the most reasonable manner, the object of the grant, such act will not be enjoined.
New Jersey Court of Errors and Appeals.
MARCH TERM, 1888.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK,
, and
Appellants,
Opinion of Chief Justice.
STOCKTON, ATTORNEY-GENERAL, et al., Respondents.
The facts of the case will be found fully stated in the opinion of the Chancellor.
JOSEPH COULT, for appellants.
CORTLANDT PARKER, for respondents.
BEASLEY, Ch. Justice. For the purpose of perspicuity it is necessary to define the status of those who appear upon the record as the promoters of this proceeding.
The bill purports to be exhibited as an information by the Attorney-General, at the instance of sundry private prosecutors, and yet, although wearing this plainly public aspect, it was sought to sustain the suit, in part, on the basis of the existence of purely private rights of prop- erty. The prosecutors both in the bill and in the argu- ments of their counsel, were presented to the Court as
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the defendants and heirs of the " old settlers of Newark," whose bodies rest in the burying ground in question, and it was contended that these " old settlers," and the pros- ecutors by privity of blood, were the owners of the dis- puted premises for the purposes of sepulture.
But this position is conspicuously untenable. If it were well founded it would, in toto, confound the present procedure, for the Attorney-General, in view of such a case, would have no place in it ; the suit of itself would fall to pieces for want of coherence between its incon- gruent parts.
But, in truth, when we look beneath the surface of the case there does not appear the least semblance of private ownership in these parties. The claim was founded on the fact that the deed from the proprietors vests this property as a place of burial in trust for the " old settlers" of Newark, it being averred that such " old settlers " were a definite class of persons, and the Court was referred to the town records where they were named.
But this construction is based on an unwarranted as- sumption ; it treats the description of the cestui que trust, as a fixed number of individuals, as much so as though designated by name. Such an interpretation seems illegit- imate, for it converts the phrase, " old settlers " into the entirely different phrase of " first settlers." If one could go outside of the terms of the deed and look for the in- tention of the parties, the inference would be strongly against the idea that the purpose was to give the benefit of the grant to the original founders of the town alone. The first inhabitancy appears to have occurred about the year 1666, and this trust deed was taken in 1696; and it cannot, therefore, reasonably be presumed that it was the design of those who were inhabitants at this later period to invest those of the earlier period with the entire ben- efit of the land thus acquired. Such inhabitants might well understand that the expression, " old settlers," em-
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braced them as well as those settlers who had somewhat the precedence of them in point of time.
The truth is, this description of the cestui que trust in this instrument, instead of being thus demonstrative of a fixed class of persons, is in fact so indefinite as to its beneficiaries as to raise grave doubts with respect to the legal efficacy of the grant itself. Regarding the convey- ance as an attempt to create either a private estate or a public charity, the intended recipients of the beneficial interests must, in the first case, be demonstrably certain, and in the latter capable of ascertainment. But who can say who the " old settlers of Newark" were? Were they those who became inhabitants during the first month of the settlement, to the exclusion of those who became such during the second month ? Or does the description embrace those who settled there in the first year, but not the incomers of the next year ?
But it is not necessary further to press this inquiry, for it is certain that, if these prosecutors had succeeded in establishing that their ancestors, being a definite number of ascertained persons, together with their heirs, were the exclusive beneficiaries of this use of the property in ques- tion, they would have demonstrated the absolute worth- lessness of this deed from the proprietors. It is very plain that when land is conveyed in fee to certain persons and their heirs to be used forever as a burial place, that thereby a charitable use is not created. In order to con- stitute such latter interest the objects of the gift must be indefinite. It has been said that a public charity begins where uncertainty in the recipients begins. 2 Perry on Trusts, Sec. 687. Such gifts are sustained for the reason that they enure to the public benefit. But a donation to certain named persons and their heirs is altogether a pri- vate concern, to be tested and regulated by the ordinary rules of law. When land is devoted forever to a use that the law recognizes as a charitable one, the transaction is
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sanctioned and sustained ; but when so devoted to a pri- vate use, it is absolutely repudiated, being deemed hostile to that important rule of public policy that prohibits the fettering of property beyond certain prescribed limits. The language of the books is, that "A trust cannot be created that will suspend the absolute ownership of the property for a longer time than that allowed by law. A perpetual trust cannot be created for an individual and his heirs in succession forever; and herein a charity dif- fers, for a trust may be established which contemplates the payment of the income of a certain fund to some charitable purpose forever."
In view of this thoroughly established principle, it is clear that there can be found no legal basis for this bill in this claim of a private right in this land vested in the prosecutors. .
Nor is the case in this respect strengthened by the fact that the bodies of the ancestors of these prosecutors were permitted to be buried in this cemetery. Such a circum- stance does not confer on the descendants of such persons the right to intervene and prevent the property from being devoted, when necessity or convenience calls for it, to other purposes. The cases are numerous and uncon- tradictory settling the law in this way, so that it is super- flous to refer to them or to discuss the subject. Many of them have been collected in the brief of the counsel of the appellee.
It was deemed that this branch of the controversy pre- sented no question of difficulty, and it has been thus briefly considered in order to eliminate it from the discus- sion of the real point that calls for the judgment of this Court.
The ex-Chancellor, who decided the case in equity, ex- pressed the view that the premises in question are de- voted to a charitable use, and in this theory this Court entirely concurs. The supervening and single question
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is, whether such use can be abrogated by legislative action, and the lands appropriated to other public pur- poses.
In order properly to apply such legal and equitable principles as are pertinent, it is necessary to comprehend accurately the juncture of events and facts forming the constituents of the problem to be resolved.
This is the situation. The early inhabitants of the sec- tion, which for the sake of brevity will be called Newark, organized themselves into a government. They became a regulated community, introducing, by general consent, such regulations and political apparatus as were necessary to the order and well-being of such an establishment. Being thus a government de facto, in that capacity they acquired by purchase from the Indians an extensive tract of land, in which was included the premises in dispute. Such acquisition was in part distributed among them- selves, in part alienated to new comers and in part de- voted to public uses. In the progress of time becoming dissatisfied with their title they applied to the proprietors for its ratification; the result being the making of the conveyance that has given rise to the vexed question in this case. This instrument bears date Ioth December, 1696. It is important that its contents should be care- fully noted. In the first place it conveys several tracts of land, being allotted as a parsonage; the premises in dis- pute which are described as being a small tract of land, " Allotted for the burying place ;" third, " A triangle piece allotted for a market place ;" fourth, "A triangle piece allotted for a training place ;" fifth, another "Triangle piece allotted as a watering place for cattle ;" and lastly, "The streets of the said town of Newark, as they are now laid out." The town not being incorporated, the conveyance was to four designated townsmen in fee, “ To the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns forever in
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common ; granted to be and remain to and for the several uses herein particularly expressed, and to be appropriated to no other use or uses whatsoever." The instrument is a deed of bargain and sale and is for a valuable consider- ation.
The deed from the Indians had been taken in the name of five persons, described as "Townsmen and agents of the English inhabitants."
In the year 1713, the inhabitants of Newark were in- corporated by Queen Anne, it being recited in this charter by the applicants therefor, "That their ancestors and predecessors, freeholders of the said town, by license from the Proprietors' Governor, in the month of July, 1667, had purchased from the Indians, all that tract of land now known by the name of Newark, &c."
From the foregoing delineation of the title to the lands in question, it seems to be clear that when the deed from the proprietors was taken, the intention was to vest the interest in the entire body of the inhabitants of the town, and not in a particular class of such persons. The recital just extracted from the charter, which is subsequent to the proprietors' deed, plainly expresses this understanding.
The next muniment of title we find in the case is the act of the legislature passed in the year 1804. (Pamph. L. 1804, page 255.) This law recited that the inhabitants of the town of Newark purchased all the lands in the bounds of the said town from the Indians; that they parceled out the same, " At the same time reserving cer- tain portions of land in various parts of said town for public purposes ;" and that doubts having arisen in respect to the Indian title it was thought advisable by the inhab- itants of said town of Newark to take a grant from the proprietors ; and that accordingly they took such convey- ance, but that "Through the ignorance of those infant times, the use created by the said grant, although really meant and intended for the benefit of the inhabitants of
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the said town of Newark and their successors," was so inartificially expressed that the town was embarrassed in asserting its rights in said lands. The statute then pro- ceeds to divert the estate created by the deed of the pro- prietors, and to transfer it to the inhabitants of the town- ship of Newark and their successors, declaring "That the estate hereby vested in the inhabitants of the township of Newark as aforesaid, shall be appropriated and forever remain to and for the several uses in the said original patent aforesaid expressed, and for no other use or uses whatsoever."
The estate thus acquired by the township became after- wards vested in the city of Newark, by force of the pro- visions of its charter.
There can be no doubt that the city of Newark has thus become invested with an indefeasible title to these lands, holding the same, at present, subject to the use above defined; for, even on the assumption that the statute passing the title was originally inefficacious and void, the premises have been held openly and contin- uously under it for over eighty years. The title thus established, therefore, must be deemed indisputable. The city holds the fee of the land as a public burying place, the same being a charitable use.
This being the posture of affairs, the legislature on the 29th day of June, 1886, passed a law whereby it was pro- vided that when lands are held by cities for burial pur- poses, and are affected by a trust that they shall be devoted to that use, and when in the judgment of the Common Council the public good will be served by de- voting such lands to other public uses, it shall be lawful to use such lands for any public purpose for which, in the judgment of the Common Council, they are best adapted. The act further directs that in case interments have been made in such lands, the Common Council shall cause such remains to be removed to some suitable and proper burial
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place, and shall make proper 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 charges that by virtue of this statute the Com- mon Council of Newark were proceeding to convert this burying ground into a public market place ; and it was that course of action that the late Chancellor, in the decision embraced in the present appeal, enjoined.
From the foregoing statement of the facts the character of the charitable use now in question will be readily un derstood. It is not a gift of land by a private donor devoting it perpetually to a particular public purpose ; nor is it a gift for such an object put in charge of a pri- vate corporation ; but it is property for such an end, purchased by the public and in the hands of the public. The situation is not unlike that which would occur if any city of the State, by force of appropriate legislation, should purchase out of the public moneys lands to be devoted forever to the use of a public cemetery. The question is, whether the property thus acquired and held by the muni- cipality would be possessed of such a nature as to be under the control of the legislature.
The general principle of law on the subject is, that municipal property is subject to legislative authority. When property is put in trust in the hands of such a corporation, the effect is to prevent the corporation from perverting, at its own will, such property to other uses ; but when the uses are public, and not derived from private grant, they are liable to be modified or changed with the concurrence of the law-making power. No case has been found that conflicts with this rule. Montpelier v. Mont- pelier, 29 Vt. 12, which is the only adjudication cited in the opinion read in the Court below, is plainly not in point, for the Court in the decided case, resolved that the statute then in question, properly construed, was not in-
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tended to apply to the trust property, and consequently the power of the legislature to deal with such property was not sub judice. The Court neither did nor could properly decide whether the trust fund could be turned by stat- utory authority to other purposes, after declaring that the act under consideration neither had, nor was intended to have such effect.
Nor is it deemed that the cases cited in the brief of the counsel of the appellees are more apt. These are four in number, viz., Montpelier v. East Montpelier, 27 Vt. 704; Dartmouth College v. Woodward, 4 Wheat. 188; Harrison v. Bridgeton, 16 Mass. 16; and Plymouth v. Jackson, 15 Penn. 44.
The first of these references has already been com- mented on; the second seems to be eliminated from the inquiry by a mere advertence to the fact that it relates wholly to the consideration of the subject of the power of the legislature, with regard to the property and fran- chises of private corporations.
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