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 5
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The third citation, that of Harrison v. Woodward, seems more akin to the subject ; but, as it is considered, it is opposed to the contention in aid of which it is vouched. That controversy related to the division of a town. By the terms of the original grant of the township of Bridgeton, one sixty-fourth of the land granted was required to be appropriated for the support of schools, and a like propor- tion for the support of the ministry, and they were laid out by the proprietors accordingly. In 1805, the town of Harrison was incorporated, being composed in part of the towns of Bridgeton and Otisfield. By the act of incorporation it was provided, "That all property, rights and credits of the said towns of Otisfield and Bridgeton should be received and enjoyed by the town of Harri- son," in certain proportions, and the question was whether a proportionate part of the provision thus made for the ministry passed to the newly created corporation. The
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distribution was negatived, but expressly on the ground that the provision for the ministry was not the property of the town, but that it belonged to a particular class as it would vest in the parishes as they came into existence. There was no question made that the lands, or their pro- ceeds, appropriated by the original charter for the support of schools, could be controlled and distributed by the sub- sequent legislation. There appears to be, with respect to their legal nature and qualities, no difference between a grant of land for the support of schools in a town and the appropriation of land as a municipal graveyard ; they are both charitable uses, and if the power could be dis- posed of by statute, as appears to have been conceded in the case cited, similarly the latter must be subject to the same authority.
The last of the four decisions above named is also alien in principle to the present inquiry ; it belongs to a well defined class of cases in which the present one is not in- cluded. It presents an instance of property devoted to a charitable use in the hands of a private corporation, and which, consequently, by force of the rule established in the Dartmouth College case, was declared to be impregnable to legislative invasion. There are a number of decisions resting on this basis. The line of demarcation between such cases and those in which the trust property is vested in a municipality, is clearly exemplified by two judgments rendered in the State of Maine. The former of the two is the case of Yarmouth v. North Yarmouth, 34 Maine, 411. The general principle on which it was settled was similar to the ratio decided in the Pennsylvania case just referred to, but incidentally it presents a feature instructive with regard to the topic under consideration. The case shows these facts: That the town of North Yarmouth owned a tract of land appropriated to the use of schools, and that the legislature then passed an act incorporating certain persons as trustees of this school fund, and authorizing
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them to sell the land, convert the avails into a fund and apply the income forever to the public schools in that town, "Among the districts in proportion to what they pay of town taxes."
It will be noticed that here was an assumption of legis- lative power over this property while its title was in the municipal corporation; arbitrarily the land was directed to be sold and the benefits of the use to be distributed in a new ratio. So far the legislative action was not deemed questionable, and the case was decided on the supposition that it was a legal exercise of authority. But when the legislature, having thus created a private corporation and placed that property in its keeping, endeavored by a later statute to regulate its distribution, such enactment was pronounced to be void. The Court draws the distinction with respect to legislative interference between a public and private corporation, and declared that these trustees "did not constitute," in the words of the opinion, "a municipal or public corporation, although the object of its creation might have been a public benefit. Their charter was a grant from the State, partaking of the nature of a contract, which they accepted and in which the government had no interest."
The case seems an authority for the proposition that while this property, derived from a public source, was vested in the municipality, it was liable to statutory con- trol, but that when it had passed to a private corporation it was divested of such liability.
The other decision in the same court, is that of North Yarmouth v. Skillings, 45 Maine, 133, and arose out of the following state of facts : The proprietors of the lands of North Yarmouth had conveyed to certain persons, their selectmen, " All the flats and mussel beds in said town, lying below high water mark, in behalf of and for the sole use, benefit and behoof of the present inhab- itants of said town of North Yarmouth, and of all such as
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may or shall forever hereafter inhabit and dwell in the said town, to be by said inhabitants, forever hereafter used, occupied and improved in common," &c.
By an act of the legislature the town of North Yar- mouth was divided, and the question was as to the power of the legislature to give, as had been done, to the inhab- itants of the new town the use of these flats and mussel beds. The court sustained the law on the broad principle stated by Chancellor KENT, that, "In respect to public corporations which exist only for public purposes, as counties, cities and towns, the legislature, under proper limitations, has a right to change, modify, enlarge or re- strain them, securing, however, the property for the uses of those for whom it was purchased."
This case is in express terms discriminated, with respect to its governing principle, from the previous case just cited, the court saying: "That it is very apparent from the reasoning and authorities cited (in that case,) that the court would have come to a different result, if the funds which were attempted to be divided by the legislature had been in the hands of the town, and not in the hands of a board of trustees."
We think the rule applied in this case is the correct one, and that it could never be invoked with more pro- priety than in the instance now before this Court. This graveyard was obtained by the community for the use of the community ; in the deed by which it was conveyed it is associated with other property obviously to be devoted to municipal uses, such as a site for a public market, a training ground and the public streets ; and all these sev- eral pieces of land have been regarded and treated as the public possessions of the city, for the market place and training ground have long since been converted into parks, and in 1809, it being represented to the legislature that the watering place for cattle embraced in the deed of the proprietors, had not, for many years, been used for the
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purposes for which it was originally appropriated, and was not wanted for such use, an act was passed authoriz- ing its sale, and it was sold accordingly by virtue of such authority. In this same vein no act more significant of the opinion prevailing in regard to the nature of these lands could have been exhibited than the act of the leg- islature enacted in the year 1804, transferring their title from the trustees to the corporate authorities.
It is undeniable, that all these lands comprehended in the proprietors' conveyance have been dealt with by the public authorities for more than a century past, with the -assent of all parties in interest, until the filing of the present bill, as though they were property held in the ordinary way by a public corporation for public use. No reason is therefore perceived why the city of Newark should be enjoined from turning this cemetery to the beneficial use in contemplation, by virtue of the sanction of the recent statute.
The principle thus asserted is important, for the oppo- site view would imperil large public interests and seri- ously embarrass the municipalities of the State in the management of their property. If it were true as a matter of law, as the Chancellor thought, that this graveyard cannot, even with the assent of the city and of the legis- lature, be used for any other purpose than that to which it was originally devoted, then the necessary result would be that these other tracts of land embraced in the pro- prietary grant would be subject to a similar restriction. By force of the prevalence of that theory, the public parks of Newark would be abolished, the one reverting to a market place and the other to a training ground ; the city would have in its midst a watering place for cattle, for the sale which has been made of that tract would be plainly illegalized ; and none of the original streets, no matter what the necessity, could be narrowed or broad- ened. And this state of things would continue not for a
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year, or a cycle of years, but forever. If a rule of law producing such consequences as these existed, its mis- chiefs would be equalled only by its unreasonableness.
Nor do we think the decree appealed from should stand, even on the theory that these premises came to the city of Newark by settlement from a private benefactor. Let us assume that the old settlers of Newark, not as a de facto government, but as an association of individuals, gave this tract of land to be used by the inhabitants of the city as a burying place forever. What would be the legal result under present circumstances? Such a donation would not be subject to legislative control, for the interest the beneficiaries would acquire under such a grant would be equitable property entitled to the protection of the law. But although the present scheme of converting this tract of land to an alien use, could not be carried into effect by means of a statute which has been enacted for that purpose, in our opinion the same end could and would be reached through the intervention of the court of equity. The case would be presented of a charitable use which, from change of circumstances, cannot be reason- ably enjoyed in the mode provided by the settler. In the presence of such a situation, the legal principle is un- questionable; a court of equity will take the matter in charge, changing, when necessary, the nature of the do- nated property, or regulating the mode of its administra- tion. When the exigency arises a decree will be made that the trust property be sold, as when it has been shown to be desirable to move to a different location a church, hospital or school house. The doctrine is a familiar one.
We think it clear that the present charity, as now con- ditioned, would fall within the scope of this authority and call for its application. The charity has failed in its main purpose. The design of the donor was to provide a place of burial, not for one or two generations, of the inhabitants of this city, but for all future generations.
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But this cemetery has long since ceased to be used as a place of sepulture ; such a use of it has been and is now forbidden by law. It is a cemetery of the past ; a place where the bodies of a bygone generation repose. The question would be whether this tract of land should be for all time to come devoted to this limited use. Such, obviously, was not the intention of the donor. The in- habitants of the city who are the beneficiaries of the charity, through their duly constituted authorities, would stand before the Court showing that the devotion of the land to its present purpose is, taken as a whole, not a benefit, but a serious detriment to the public; and that it is reasonable to remove the bodies in this yard to a more suitable place to be provided out of the city treas- ury, and thus effectuate that part of this charity that only is susceptible of being carried out. It is not perceived on what ground a court of equity could refuse to accede to such a prayer ; for it does not seem possible that any reasonable person would say that this tract of land, in the most populous part of a large city, should be permitted to remain for all future time devoted merely to its present use ; for to say this would, in effect, be to maintain that a charity will be so carried into effect as to work an injury to its beneficiaries. It seems to us plain that under the conditions presented, the Chancellor, if he had been prop- erly applied to, would have been bound to permit the designed transmutation of this property.
And if this be so, then the injunction should not have issued, for the Court will not enjoin the act of a trustee of a charitable use which itself would have directed to be done had the case been before it. Such a trustee may alienate the trust property, but he will do such act at the peril of his conduct being disapproved of by the Court of Chancery. On this head the case of the Attorney-Gen- eral v. South Sea Company, 14 Beav. 453, is an illustra- tion. Eight messuages were conveyed to trustees, the
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rents to be applied, by way of certain charitable uses, for the poor of the parish. The trustees leased these prop- erties for ninety-nine years to the South Sea Company, and this was complained of as a breach of trust. But Lord LANGDALE, defining the power and duty of a trus- tee of this class, says : "It is plain that in ordinary cases a most important part of this duty is to preserve the property, but it may happen that the purposes of the charity may be best sustained and promoted by alienating the specific property. The law has not forbidden the alienation, and this court upon various occasions, with a view to promote the permanent interests of charities, has not thought it necessary to preserve the property in specie, but has sanctioned its alienation." And after re- marking that the trustees may do, at their own risk, what the Court would have done under the circumstances, and deeming the alienation made by the trustees, on the whole, beneficial, he dismissed the bill.
This we think should have been the course in the present case ; the Chancellor, even on the theory adopted by him that this charity was not subject to legislative control, should not have enjoined the municipal authori- ties from doing the act contemplated by them, inasmuch as if the case had been before him, he would have been constrained, by the force of a principle of equity that is not open to question, to have directed the doing of this same act.
The decree must be reversed and the bill directed to be dismissed, but under the circumstances, without costs in either Court ..
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The Indian Bill of Sale to the Newarke Men.
Entered 2d March, 1676-7. [E. J. Records, Lib. I, fol. 69.]
Know all men By these presents, that WEE, Wapamuck the Sakamaker, and Wamesane, Peter, Captamin, Wecap- rokikan, Napeam, Perawae, Sessom, Mamustome, Cacan- akque, and Hairish, Indians belonging now to Hakinsack, the known acknowledged proprietors of a certain tract of Land Lying on the West of Pesayak river being parties on the one Side, and Mr. Obediah Bruen, Mr. Samuel Kitchell, Michael 'Tomkins, John Browne, and Robert Denison, with the consent and advice of Capt'n Philip Carteret, Governeur of the Province of New Jersey, and in the behalf of ye Inhabitants now being or to be ye possessors of the Tract of Land Inserted in this Deed of Sale the other parties, Doe make this Indenture the eleventh day of July in the year of our Lord 1667 (being the enlarging and perfecting of a deed of Sale made With the Indians the year before the present) in manner and form following, viz :
THAT WEE, the said Wapamuck the Sakamaker, and Wamesane, Peter, Captamin, Wecaprokikan, Napeam, Perawae, Sessom, Mamustome, Cacanakque, and Harish, doe, for ourselves and With Consent of the Indians, Bar- gain, sell and deliver, a Certain tract of Land, Upland, and Meadows of all sorts, Wether Swamps, Rivers, Brooks, Springs, fishings, Trees of all sorts, Quaries and Mines, or Metals of what sort soever, With full liberty of hunting and fouling upon the same, Excepting Liberty of hunting for the above said proprietors that were uppon the upper commons, and of fishing in the above said Pesayak River ; which said tract of Land is bounded and Limited with
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the bay Eastward, and the great River Pesayak North- ward, the great Creke or River in the meadow running to the head of the Cove, and from thence bareing a West Line for the South bounds, wh. said Great Creke is Com- monly Called and known by the name Weequachick, on the West Line backwards in the Country to the foot of the great mountaine called Watchung, being as is Judged about seven or Eight miles from Pesayak towne; the said Mountaine as Wee are Informed hath one branch of Elizabeth towne river running near the above said foot of the mountaine; the bounds northerly, viz. Pesayak River reaches to the Third River above the towne, ye River is call Yauntakah, and from thence upon a north- west line to the aforesaid mountaine; all which before mentioned Lands for the several kinds of them, and all the singular benefits and Priviledges belonging to them, with ye several bounds affixed and expressed herein, as also free liberty and range for Cattle, horses, hoggs, and that though they Range beyond any of the bounds in this deed Expressed, to feed and pasture Without Moles- tation of or damage to the owners of the cattle &c. above said. WEE the above said Indians, Wapamuk, &c. doe sell, Alienate, make over and Confirm all our Right, Title and Interest of us, our heirs, and Successors forever Unto the said Lands, &c., as above mentioned to Mr. Obediah Bruen, Mr. Samuel Kitchell, Michael Tomkins, John Browne and Robert Denison, townsmen and Agents for ye English Inhabitants of Pesayak, to them, their heirs and associates for Ever, to have, hold, and dispose of, Without Claim, Let, or Molestation from ourselves or any other Whatsoever. These Lands, &c. are thus solde and delivered for and in consideration of fifty double-hands of powder, one hundred barrs of lead, twenty Axes, twenty Coates, ten guns, twenty pistols, ten kettles, ten Swords, four blankets, four barrels of beere, ten paire of breeches, fifty knives, twenty howes, eight hundred and fifty fathem
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of wampem, two Ankors of Licquers or something Equivo- lent, and three troopers Coates ; these things are received, only a small remainder Engaged to them by bill. To the true and just performance according to ye true intent of our Bargain, WEE ye said Obediah Bruen, and the rest above said, doe for ourselves and heirs, Ex'tors, Adm'n'tors or Assigns, to the said Wapamuk, &c., the true proprietors of the said Lands doe bind and Covenant. WEE the said Wapamuk and the rest of the Indians above said doe fully surrender, pas over and Yeild up all our Right, priv- ilege and power in the same, and to free the above said Lands from Claim, Incumbrances, of What kind soever ; all the above mentioned purchase Wee doe Grant and deliver to Obediah Bruen and ye rest above said, to them, their associates, heirs, and all the lawfull possessors. And for the full Ratiffication and testification of the above said bargain and agreements about the aforesaid tract and parcells of Land so bounded, Wee, the said parties above mentioned have hereunto Enterchangeably sett our hands and seals, the day and year above said, in the presence of Us Witnessing. Moreover Wee doe grant them free liberty to take what timber and stones they please in any of our Lands, where Wee the above said Indians have yet propriety.
OBEDIAH BRUEN, MICHAEL TOMKINS, SAMUEL KITCHELL, JOHN BROWNE, BOBERT DENISON.
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WAPAMUK,
- his marke.
HARISH,
12 his marke.
CAPTAMIN,
his marke.
MAMUSTOME,
PETER,
his marke. his marke.
WAMESANE,
his marke.
WEKAPROKIKAN,
his marke.
CACANAKRUE,
his marke.
SESSOM,
his marke.
PERAWAE,
his marke.
Signed, sealed and delivered in presence of SAMUEL EDSSALL, PIERWIM, ye Sachum of Pau, X his marke. EDWARD BURROWES, mark of R RICHARD FLETCHER, CLASSE X his marke.
SIGIL. *
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Indian Deed of Sale and Confirmation to the Towne of Newark.
Entered 18th March. [E. J. Records, Lib. I, fol. 107.]
WEREAS in the original deed of sale make by the In- dians to the inhabitants of the town of Newark, bareing date the ellevent day of July, 1667, it is said to the foot of the Great Mountaine, called Watchung, alias Atchunck, WEE Winocksop and Shenocktos, Indians and owners of the said Great Mountaine, for and in consideration of two Guns, three Coates, and thirteen kans of Rum, to us in hand paid the receipt Wereof wee doe hereby acknowl- edge, doe Covenant and declare to and with Mr. John Ward and Mr. Thomas Johnson, Justices of the peace of said towne of Newark, before the Right Hon'ble Phillip Carteret, Esq., Governeur of the Province of New Jersey, and the other witnesses here under written, that it is meant, agreed, and intended that their bounds shall reach or goe to the top of the said Great Mountaine, and that WEE the said Indians will marke out the same to remain to them the said inhabitants of Newark, their heires or Assignes for Ever. In Witness hereof WEE the s'd In- dians have hereunto sett our hands and Seales the 13th of March, 1677-8.
WINOCKSOP,
his marke. [SIGIL.]
SHENOCKTOS,
his marke. [SIGIL.]
Signed, sealed and Delivered in the presence of JAMES BOLLEN, Secretary, HENDRICK DROGESTRADT, SAMUEL HARISSON.
This acknowledged before me the day and yeare above written.
PH. CARTARETT.
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Deed from the Proprietors. [E. J. Records, Lib. F, fol. 166-168.]
THE PROPRIETORS of the Province of EAST NEW JER- SEY, To all persones to whome these presents shall come GREETING. Know ye, that WEE the sayd Proprietors for and in consideration of the Rents and services herein After Reserved and for severall other good causes and considerationes us hereunto moving, HAVE Given, granted, bargained and sold, And by these presents Do grant, give, bargain and sell unto John Curtis, John Treat, Theophe- lus Peirson and Robert Yong, all of the Towne of New- ark in the countie of Essex and Province afore sayd, ALL those severall Tracts of Land and meadow hereafter Expressed, scituate, Lyeing and being within the sayd Towneship of Newark :
Ist. A Home Lott, In Length tenn chaines, in breadth at the east and middle three chaines Lack six foot And att the west end foure chaine and three quarters of A Chaine ; bounded North by John Johnson, south by Daniel Browne, east and west by high wayes.
ALSO A tract Lyeing Above Daniell Dods Home lott BEGINING at Daniel Dodd's South-west corner, thence runing North at the East End twenty Eight chaines to the highway; thence as the highway runes twentie six chaines to the branch of the Mill Brooke; thence Along the Brooke seaven chaines at the west End to Samuell Huntington's line; bounded west by the sayd branch, North by the highway, East by Hance Alberts, Samuel and Daniel Dod, and by the other Lotts South.
Another tract beyond the Mill brooke branch BEGIN- ING At A Chestnut tree markt on foure sides which is John Ward's corner; thence runing north west Seaven- teene chaines to a maple tree markt as before at the
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swamp side ; thence south and by west seventy to another tree markt as before; thence East and by south twentie chaines to Mr. Crane's corner, bounded North by Land unsurveyed, East by other Lotts, west by the Swamp and fresh meadows, south by other Lotts.
ALSO a peece of meadow at the Lower tide pond, in Length seaventeene chaines, In breadth seaven chaines, bounded east by the creeke that runs into the tide pond, south by Hugh Roberts and Thomas Staples', north by the Pond, west by Oyster Creeke.
ALSO a peece of swamp Lying at the Great Swamp in the Neck, begining at the Bogg [bridge, in the survey,] and runing in Length twentie chaines north, and at the south end fifteen chaines, bounded south by the bridge, east by the boggs, west by other Lotts.
ALSO another peece of meadow at the head of the Great Meadow, BEGINING at Samuel Potter's South west corner And running North twentie chaines in breadth to Aaron Blackley's line, in length twenty chains, bounded east by Samuel Potter, north by Aaron Blackley and John Johnson, west by the swamp, south by Eliezer Lampson and unsurveyed Land; containing in all the above said tracts of upland and meadow (after allowances for barrens, highways, &c.) two hundred acres, being alotted for the parsonage.
2dly. All that small tract 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.
3dly. A triangle peece aloted for a Markett place, six chaines wide at the south end, on the west side nine chaines in length, and on the east side eleven chaines in length, bounded on all sides by highways.
4thly. Another triangle peece alotted for a training place, in length on the west side seaventeen chaines, on
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the south-east side fifteen chaines, and on the east end seaven chaines and a halfe, bounded on all sides by High- ways.
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