Bitney v. Grim

144 P. 490, 73 Or. 257, 1914 Ore. LEXIS 110

• Court: Oregon Supreme Court
• Decided: November 24, 1914
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

Upon a consideration of the whole record it appears to be conceded by the defendants as a fact that the plaintiffs are the owners in fee simple of the premises described in their complaint except the cemetery mentioned and the county road. These constitute the grounds of dispute between the parties.

1. As to the county road, it clearly appears in the testimony that until a few years prior to the commencement of this suit there was a regularly traveled public road across the premises on the line described in the answer for about 40 years. Less than ten years ago the road supervisor changed the course of the highway, raising an embankment for that purpose about 7 feet high across the track hitherto in use, causing the travel to cross the premises in question on a course to the right of the original road and nearly parallel thereto, since which time it has been impossible to use the old way. This establishes an abandonment of the former road at that place. It is said in 1 Cyc., page 6:

“Time is not an essential element of abandonment. The moment the intention to abandon and the relinquishment of possession unite, the abandonment is complete. ’ ’

In 1 R. C. L., page 4, it is said:

“Public rights, such as the easement of passage which the public has in respect of a highway, may be lost by abandonment. * * The act of relinquishment of possession or enjoyment must be accompanied by an intent to part permanently with the right to the thing, otherwise there is no abandonment, and the moment the intention to abandon and the relinquishment of possession unite the abandonment is complete, for time is not an essential element of abandonment. Therefore, in any case where a question of abandonment is involved, the important fact to be determined is what was the intention of the' person whose rights' are claimed to have been abandoned.”

Presuming that the road supervisor in changing the course of travel acted by authority, it is clear that filling up the old road with an embankment so as to make it inaccessible evinces the act and the intent to abandon the former way. Hence the county can claim nothing for the old road so far as it affects the premises mentioned in the complaint.

The dedication of the cemetery is evidenced by a deed from John W. Grim and his wife under date of January 29, 1873, whereby in consideration of $1 they conveyed to Alfred Hovingden, John S. Smith and G. W. Dimick, as trustees of Grim’s burial ground, and to their successors in office, a certain tract of land described thus:

“Commencing at a stake on the north side of the road leading from the said John W. Grim’s to Butte-ville; thence in an easterly direction fourteen rods to a stake; thence northerly forming a regular square eighteen rods to a stake; thence westerly fourteen rods to a stake; and thence in a southerly direction eighteen rods to the place of beginning, containing one and one-half acres and twelve rods. To have and to hold the said premises as a burying-ground to the said trustees and their successors in office forever.”

The testimony shows that even prior to the date of the deed people had buried their dead in that ground, and this continued afterward. Later on, most of the bodies were removed by friends and relatives to another cemetery, but it is the undisputed testimony of witnesses who speak from personal knowledge that there are yet bodies remaining buried in the graveyard thus constituted.

2-5. Objection is made to the deed last referred to for uncertainty of description; but in our judgment it constitutes evidence which, coupled with actual occupation of the grounds for the purpose, amounts to a dedication of the same for use as a graveyard by acts in pais. Having been tbns dedicated by the owner of the fee, the premises are subject to that use so long as bodies remain buried there and until they are removed by public authority or by friends or relatives. The state by the exercise of its police power can properly cause the abandonment of a cemetery and the removal of the bodies. Friends and relatives may also voluntarily remove their dead, and if all those who sleep' there were thus taken away and its use as a place of sepulture entirely abandoned the character of the ground as a burial place would be lost. But until its depopulation as a city of the dead is complete by one or the other process, the ground dedicated for the last resting place of deceased persons must remain true to its dedication. Although the tract in dispute has been grossly neglected, yet we think the testimony clearly establishes that it yet remains a cemetery and must be respected as such.. The following precedents are instructive on the subject here considered: Tracy v. Bittle, 213 Mo. 302 (112 S. W. 45, 15 Ann. Cas. 167); Roundtree v. Hutchinson, 57 Wash. 414 (107 Pac. 345, 27 L. R. A. (N. S.) 875); Hines v. State, 126 Tenn. 1, (149 S. W. 1058, 42 L. R. A. (N. S.) 1138).

6. Messrs. Hovingden and Smith died several years ago. The plaintiffs introduced a deed from the surviving trustee, G. W. Dimiek, as an individual quit-claiming to them the land by description set out in the original deed from J. W. Grim and wife to which allusion has been made. In our judgment the plaintiffs take nothing by this deed from Dimiek, for as an individual he had nothing to convey and never had. As trustee he could not be unfaithful to his trust and convey the property for any other purpose than that for which it was originally dedicated, and he does not attempt to do so.

The conclusion is that the decree must he modified so as to quiet the title of plaintiffs as against the county in respect to the road as described in the defendants ’ answer, but to dismiss the suit as to the defendants Grim; neither party to recover costs or disbursements from the other in this court.

Modified.

Mr. Chief Justice McBride and Mr. Justice Moore concur. Mr. Justice Eakin dissents.