Alexander Martin, Special Judge.
— This is a suit in ejectment, brought in April, 1884, by John Campbell and some thirty other plaintiffs, as owners in common, against the City of Kansas, for recovery of a block of ground situated in said city, between Oak and Locust streets and Missouri and Independence avenues. The petition is in the usual form, alleging the right of possession in plaintiffs, and their ouster and dispossession by defendant.
The answer, along with a general denial, contains averments of some evidential facts, admissible under the [337] denial, to the effect that the land sued for was dedicated to the public use. for graveyard purposes, by the original proprietors of the “ old town, Kansas City,” in 1847; that, ever since the dedication, it has been used for graveyard purposes ; and that it is a graveyard still.
The plaiiltiffs, in reply, after denying generally, alleged that in April, 1884, the defendant filed an answer to a certain suit in the Jackson county circuit court, brought by one Nathaniel Grant, wherein the City of Kansas, defendant therein, averred that by ordinance of October 30, 1857, the land in controversy was vacated for graveyard uses, and “that since October 30, 1857, said land has not been used for or as a graveyard,” by reason whereof it is claimed'that defendant is now estopped from asserting anything to the contrary. As no judgment is pleaded, there could be no estoppel. As a,n adverse admission, the evidence was received. The case was taken by change of venue to the circuit court of Johnson county, where it was tried for the third time; this last trial being before 'his honor, Judge Givan, of that circuit. The trial resulted in a verdict and judgment in favor of plaintiffs, from which the defendant prosecutes its present appeal.
In order to understand the issues of law which come before us, it will be necessary to state briefly, in •a general way, the leading features of the case as developed at the trial. It appears that the original proprietors of the land whereon stands Kansas City made three plats of the town-site, — one in 1839, before full acquisition of title ; another in 1846, which covered only about half of the town-site; and a third one in June, 1847, which included and superseded the two previous ones, and which alone includes the land in controversy. The plat of 1847 discloses additional lots laid off for sale just north of the land in controversy, and east of the lots formerly platted. It also includes, contiguous to these additional city lots, certain parcels of land, [338] ranging - from one to four acres each in extent, and numbered from 1 to 32, inclusive. The names of the respective proprietors appear on these lots as if with reference to a contemplated or accomplished partition between them, excepting lot numbered 21, which is marked on the plat as “Donated for graveyard.” This plat was made by Mr. John C. McCoy, a surveyor, and a witness in the case, who was one of the original proprietors of the town-site, under whom plaintiffs claim title. It does not appear to have been signed or acknowledged by any of the proprietors. Neither was it recorded at the time, or marked “Piled,” although it was deposited with the recorder of titles in 1849.
Prior to 1849 there was no statute requiring town-plats to be recorded. After the statute was passed containing this requirement, this plat seems to have been recorded. At the sale which followed the making of the plat, it was exhibited to the purchasers; and deeds were made in conformity with it, and by reference to it. Prior to 1847 a very few burials had taken place on a high knoll or ridge which lay near the northwestern corner of the square, extending into the street on the north side, which was not distinguished from the ground in controversy by any visible boundary at that time. After the ground was platted, in 1847, the inhabitants of the town and the vicinity continued to bury in this land, mostly on the western half, which was higher than the eastern portion, making use of the unimproved streets on.the north and west for the same purpose. The burials could not have been very numerous, as the town had only about one hundred inhabitants in 1847, and less than five hundred in 1857, when interments in it ceased.
On the thirtieth of October, 1857, the city council passed an ordinance vacating the land in controversy for graveyard purposes. It subsequently notified, by newspaper publication, the relatives of persons buried there to remove their remains. The evidence relating [339] to what was done with the land since 1857 is very voluminous, and need not be stated here in detail. In a general way, it may be stated that the city took exclusive possession of the land; that no further burials in it took place, except, perhaps, the burial of an infant; that it graded the streets surrounding it; that it leveled it off, and used it as a place for the workhouse force to break rocks upon for macadamizing the streets ; that it graded the land, which was of an uneven surface, lying above the grade in some places from eight to seventeen feet, and below it in others ; that it fenced it in, laid walks across it, with turnstiles at the corners; that it planted it in trees, sowed it in grass, and lighted it at night; that it recognized and treated it as a park ; that, by reason of its ordinances and improvements, nothing remains in or about it to indicate that it is a graveyard. In -all this the public has acquiesced.
I. It appears from the evidence that Robert Campbell, William Grillis, Pry P. McGree, John C. McCoy, Henry Jobe, Jacob Ragan and William B. Evans, as early as 1838, acquired a body of about three hundred and twenty-five acres of land, in which is included the site of Kansas City. They became owners in common, in fee simple, and the plaintiffs claim the land in controversy as their heirs or assigns. The right of the plaintiffs to have in this suit all which the original proprietors would be entitled to were they suing is not denied in the arguments before us. It is clear from the testimony in the record that the original proprietors never devoted this land to the use of a graveyard by any instrument of writing, in the form of deed or plat, sufficient to comply with the requirements of the law relating to the transfer of interests in real estate. It, therefore, follows that the legal fee must remain still in the original proprietors or their legal representatives. But the actual use of land may be devoted to public purposes without deed or writing of any character. Proof of such devotion may consist of acts in pais going to [340] show that the owners intend to donate the nse for a public purpose, and that the public has accepted and used it for that purpose. The estate thus parted with does not extend beyond the use of the land, leaving the technical legal fee in the donors, which, however, must be held by them for the donated use as long as that use continues. While the plat of 1847 could not operate to pass the fee simple of this land to the public, or to any trustee of the public, it constitutes an important and controlling fact in the evidence to establish a dedication of the use of the land as claimed by the defendant. The donation of the land was marked on the original plat of 1847, which was made by one of the proprietors, and was used by him at the public sale which took place, soon thereafter. The public accepted the use thus indicated by burying their dead on the land for about ten years. The plat and the use of the land, as indicated by the plat, were acquiesced in by all the proprietors. These facts constitute the best evidence possible of a dedication in pais to the public, which dispenses with the necessity of written instruments, as well as the existence of a grantee or trustee. Such I understand to be the established law of the state on the subject of dedications of land to public use. Becker v. St. Charles, 37 Mo. 13 ; Putnam v. Walker, 37 Mo. 600 ; Rutherford v. Taylor, 38 Mo. 315 ; Price v. Thompson, 48 Mo. 365 ; Reid v. Board of Ed., 73 Mo. 304.
II. In their argument the learned counsel for the plaintiffs contended that, notwithstanding a dedication of this land to the public for the purposes of sepulture, the owners of the fee ought to recover actual possession thereof during a continuance of the use for which it was dedicated; not, perhaps, an exclusive possession, as against the public or the municipal guardian of the public, but as cotenant with it, or subject to the reasonable use of it by the public. To sustain their position, cases are cited in which it has been held that the donors [341] of land dedicated to public uses are entitled to actual possession for the purpose of exercising any rights of property in the land which are not inconsistent with the use for which it was dedicated. I am convinced that the cases cited have little or no application to the case at bar. They proceed upon the assumption that, after dedication to the particular use contained in the dedication, there may remain other beneficial uses for the enjoyment of the donors which could not in any manner interfere with or prejudice the use for which the dedication was made.
In the case at bar the donors have devoted the whole use of this land for the purpose of continuous burials, and as a place for the repose and memory of the dead. In my judgment, no conceivable right of private beneficial enjoyment could remain in the donors, as owners of the fee, which would not be inconsistent with the right of sepulture, to which they have devoted it. Crops, for their gain and sustenance, could not be grown upon its surface, nor could dwellings for their shelter and enjoyment be erected within its limits, without interfering with the solemn use, the sanctity and repose implied in the purpose of the dedication. The sunshine and laughter of inhabited dwellings, as well as the “ toil and endeavor” of business pursuits, are out of place in cemeteries of the dead. According to our law governing the subject of ejectment, the plaintiff cannot prevail unless he has the immediate right of possession at the commencement of his action. As long as the rights of sepulture, parted with in the donation, are outstanding in the public, the plaintiffs have no right to recover the use of the land for any enjoyment or purpose of their own. Hunter v. Trustees, 6 Hill, 407. The city, as trustee and representative of the public, has the right of actual possession for the purposes of the dedication, and the donors have no other rights than such as any inhabitant of the city may use and possess. I am satisfied that the court below was right in declining to adopt [342] the opposite view of the case as presented by counsel before us, and denied by that court in its rulings.
III. Having reached the conclusion that the plaintiffs dedicated the exclusive use of the land in controversy to the public for the purpose of a graveyard, it is proper, next, to consider whether the use thus dedicated is a perpetual one, and left no possibility of a reverter to the original donors, or their legal representatives. If it be true that the use parted with is perpetual and eternal, then it is a matter of no consequence to the plaintiffs what the public or the City of Kansas, as its representative, has done with the land ; for no abuse and no abandonment could restore it to the original donors or the plaintiffs representingthem. Their interest would be nothing more than the interest of any other inhabitant of the city or its vicinity to enforce the protection and preservation of the land for the uses of a graveyard forever. If the dedication left no possibility of a reverter, then it will not be necessary to consider any other questions in the case. The literature of religion and piety has clothed trusts, of the kind in controversy, with attributes of perpetuity which I am satisfied cannot be sustained by science, history or the best-considered decisions of the courts. This sentiment, based on piety and common reverence, will be found expressed in the dicta of decisions, rather than adopted in the result of the judgments; and, even when most earnestly expressed, it is usually accompanied with qualifying phrases which make against the principle of absolute perpetuity. In Brendle v. Congregation, 33 Pa. St. 422, the judge, in rendering his opinion, says: “We hold that the ground once given for the interment of a body is appropriated forever to that body. It is not oniy the domus ultima, but the domus ceterna, so far as eternal can be applied to man or terrestial things. Nothing but the most pressing public necessity should ever catóse the rest of the dead to be disturbed.”
[343] All expressions declaring an eternal and perpetual use should be accepted with qualifications which arise from the nature of the subject-matter, and from necessities of the public good. No human body committed to the earth preserves forever either identity or trace of form. No monument placed above it is proof against the corroding touch of time. In the progress of the ages, both body and monument fade away. The temporary nature of the tenement we live in is more truthfully expressed in the verse of a living poet:
“The house was builded of the earth, And shall fall again to ground.”
If every portion of ground wThich has been made a burial place for man should be devoted in perpetuity for burial uses, the most populous and cultivated districts of the world, where millions upon millions of the human race have sunk into the earth in the countless ages of the past, would have to be abandoned as a dwelling place or means of support to the living inhabitants of the present day. The devotion of land to any particular use must be subject to the changes and vicissitudes which time may bring to it. The use of a graveyard is twofold, — for the purpose of continuous burials, and for the purpose of preserving the remains and memory of those who have been buried. The original uses can be continued only by the public continuing to bury, or by continuing to protect the remains already buried, and to preserve the identity and memory of the persons who have left them. It can hardly be said that there is anything compulsory on the public to do this, although desecration can be prevented at the instance of anyone. The public may cease to bury in the dedicated ground whenever it pleases. It may also refuse or neglect to either erect or preserve any monuments to indicate the identity of those already buried, or to give and continue to the place the character and name of a graveyard. When this happens the original use terminates, and the [344] fee vests in the original donors, or their legal representatives, free from it. It would be unjust that the public should retain the use for any other purpose than the one for which it was dedicated.
There are also certain rights of sovereignty to which all land devoted to burial purposes must be subject. I allude to the right of eminent domain, and the right to pass all reasonable laws and regulations for the health and welfare of the living. A constitutional exercise of these rights may terminate the use of a graveyard for all the purposes for which it was donated. In Kincaid’s Appeal, 66 Pa. St. 411, Mr. Justice Si-iakswood recognized the validity of an act of the legislature which authorized the disinterment and removal of bodies from a graveyard. He says: “We cannot doubt that it is competent for the legislature to authorize or to delegate that power [of disinterment] to the municipalities. It is a police power necessary to the public health and comfort. As they can authorize the removal of any other thing which they may deem a nuisance by a summary proceeding, without a jury trial, so they can authorize and direct the removal of dead bodies from any ground, and the consequent vacation of it as a bv/rying-grovmd. * * * As to those recently interred, the necessity, with a view to public health and comfort, of removing them, is as apparent as the prohibition of future interments. With those which have become entirely decomposed, leaving only the bones, that necessity may not be so urgent; but of that the legislatiore are the exclusive judges. They may direct the removal in such manner and upon such terms as to them may seem wisest and best, having due regard to that feeling of reverence and attachment which all men naturally have to the spot where the ashes of their departed ancestors and friends repose, and the strong desire that, if possible, they should not be disturbed. Been these feelings, however, must yield to the higher consideration of the public good.”
[345] In Gilbert v. Buzzard, the court says: “It has ■ been argued that the ground once given to the interment of a body is appropriated forever to that body. * * * The time must come when posthumous remains must mingle with, and compose a part of, the soil in which they have been deposited. * * * The legal doctrine, certainly, is, and remains, unaffected, that the common cemetery is not res unius cetatis, the exclusive property of one generation now departed, but is likewise the common property of the living, and of generations yet unborn, and subject only to temporary appropriation.” 3 Phillim. Ecc. R. 335. Language of the courts indicating the temporary nature of graveyard uses will be found in the following cases: Windt v. Church, 4 Sandf. Ch. 471; Partridge v. Church, 39 Md. 631; Page v. Symonds, 63 N. H. 19; Sohier v. Church, 109 Mass. 21.
An interesting question bearing on the right of ' reverter, and arising out of the law of charitable uses, has been suggested in the opinions of courts cited by counsel before us, rather than in the points made and elaborated by them. When land is donated for a mere public use, such as highways, streets, wharves, parks and landing places, the use of the land reverts to the donor upon discontinuance or abandonment of the particular use for which it was donated. This is the result according to the authorities governing the modern law of dedication. Washb. Eas. 200; Hooker v. Road Co., 12 Wend. 371; Austin v. Parish, 21 Pick. 223; Beardslee v. French, 7 Conn. 125 ; 3 Kent, Comm. [6 Ed.] 448; Jacksonville v. Railroad, 67 Ill. 543. Land may be dedicated to pious and charitable purposes, as well as for public ways, commons and other easements in the nature of ways. Pearsoll v. Post, 20 Wend. Ill. Now it seems to us that the dedication in this case falls fairly enough within the general definition of charitable and pious purposes. Commissioners v. Church, 30 Kan. 620. Such uses,, we [346] know, are more often free from the incidents of reversion and resulting trusts than subject to them. We have seen that the rule “once a graveyard always a graveyard” cannot be maintained in the face of modern law. The question closely allied to it is whether, after the land donated for a charitable purpose, such as a graveyard, ceases lawfully to be devoted to that use, or becomes impossible to be so devoted, must it remain with the public, or the representative of the public, subject to be appropriated and used for other charitable purposes germane to the original one for which it was donated, in accordance with the equitable doctrine of cy pres, which has been to some extent recognized in the decisions of this state.
I do not deem it necessary to consider the general principles upon which a court of equity will determine whether the charitable intention of a donor has come to an end, or whether it may be continued in a changed or modified form, so as to cut off all rights of reversion. The courts in this country have very generally ignored or denied the existence of the doctrine of cy pres as bearing upon donations or dedications of land made for particular charitable uses, such as graveyards and schools. Society v. Dugan, 5 Atl. Rep. 420 ; Reed v. Stouffer, 56 Md. 254; Hunter v. Trustees, supra; Weisenberg v. Truman, 58 Cal. 70 ; Carter v. Portland, 4 Or. 348; Appeal of Gumbert, 1 Atl. Rep. (Pa.) 438 ; Schlessinger v. Mallard, 11 Pac. Rep. (Cal.) 728; Venable v. Coffman, 2 W. Va. 310 ; Still v. Trustees, 16 Barb. (N. Y.) 112 ; Brown v. Church, 23 Pa. St. 495 ; Foster v. Dodd, 17 Law T. R. 614; Washb. Eas. 200; Kirk v. King, 3 Pa. St. 436.
In the case of Board v. Edson, 18 Ohio St. 226, it appears that land had been donated, or rather dedicated by plat, “for school purposes, and on which to erect schoolhouses.” This donation undoubtedly fell within the classification of charitable dedications. It was accepted and used by the public for school purposes [347] for many years. In the course of time the land became useless for school purposes on account of the proximity of a railroad. The board of education filed a bill setting out these facts, and asking to have the lots sold, and the proceeds applied to purchasing other property to be devoted to the same purpose. On a demurrer to the bill by the representatives of the original dedicators, it was dismissed. The court declared: “ Should the sole uses to which the property has been dedicated become impossible of execution, the property would revert to the dedicators or their representatives. Is it competent for a court of equity, without the consent of the dedicators, to extinguish forever this right of reversion by ordering a sale of the property, and assuming to execute the trust cy pres, by transferring it to the proceeds of the sale? We think judicial power cannot legitimately be so far extended.”
In the case of Rutherford v. Taylor, 38 Mo. 315, Judge Wagner seems to regard dedications of land to any lawful use, whether public, pious or charitable, as all alike, so far as the rights of the donor are concerned. He treats the donor’s rights as resting solely on the law of estoppel in pais, precluding the rights of the donor during continuance of the use for which it was dedicated. I may add here that the right of retention as a possible incident to this dedication does not come fairly before us on the record of the case. No court of equity has assumed to order á sale of the land in controversy for the purpose of purchasing another graveyard. Neither does the city assume to retain the land for the purpose of appropriating it to any kindred use with the dedication. If it be a fact that it permits it to be used as a park or place of recreation for the comfort or amusement of the living, the use could not be justified as an application of the doctrine of cy pres. But the city, in its answer, denies any diversion, and expressly alleges a continuance of the original use for which it was dedicated. It claims in its answer, and in the [348] arguments of its counsel, that the place is still a graveyard. Under these circumstances, I think this court is relieved from the task of determining whether this dedication is subject to the doctrine of oy pres.- It is not called upon by the state of the record to authoritatively dispose of such a question. My conclusion is that the plaintiffs in the case made in this record must prevail if the use of the land for a graveyard has been discontinued and abandoned by the public and its representatives. Upon any lawful cessation of the use, the title reverts.
IY. This brings us to the issue of fact made between the parties to the suit, the principal issue of ■ the controversy, which was submitted to the jury, and decided in favor of the plaintiffs. It is not an issue for this court to determine. As an appellate tribunal, it can only decide whether the issue of discontinuance, and abandonment of the use, was submitted to the jury on proper instructions of law to guide them, and whether their finding of the issue is supported by substantial evidence tending to prove the issue as found by them.
The question was submitted on the following instructions: “1. The court instructs the jury that, to constitute abandonment of a graveyard, it is not sufficient that burials therein have ceased or been prohibited. So long as it is kept and preserved as a resting-place for the dead, with anything to indicate the existence of graves, or so long as it is known or recognized by the public as a graveyard, it is not abandoned. On the other hand, it may contain the remains of the dead, and yet be abandoned. If no interments have for a long time been made, and cannot be made, therein, and, in addition thereto, the public, and those interested in its use, have fail ed to keep and preserve it as a resting place for the dead, and have permitted it to be thrown out to the commons, the graves to be worn away, gravestones and monuments to be destroyed, and the graves [349] to lose their identity, and if it has been so treated and used or neglected by the public as to entirely lose its identity as a graveyard, and is no longer known, recognized and respected by the public as a graveyard, then it has been abandoned ; or if the public, and those interested in its use as a graveyard, have j>ermanently appropriated it to a use or uses entirely inconsistent with its use as a graveyard, in such a way as to show an intention of permanently ceasing to use it as a graveyard, and it has become impossible to use it as a graveyard, then it has been abandoned ; and in determining the question of abandonment the jury should take into consideration all the facts and circumstances given in evidence.
“2. Although you may belieye from the evidence that the land in controversy was dedicated, at the time and in the manner as alleged in defendant's answer, to the public for its use as a graveyard, and that the public, for a number of years after such dedication, used the said land for such purpose, if you further believe from the evidence that the public, and those interested in the use of said land as a graveyard, had before the commencement of this suit abandoned the same as a graveyard, and that the same was not at the commencement of this suit a graveyard, and was in possession of defendant, then you should find for the plaintiff.”
I have considered these instructions very carefully; and, although they may be- open to the criticism of repetition and redundancy, I am satisfied that they gave the jury to understand very clearly that the plaintiffs were not entitled to recover unless the jury was satisfied from the evidence that the original uses for which the land had been dedicated had been discontinued and abandoned before the commencement of the suit.
In order to determine whether there was evidence to sustain the finding of the jury on this issue, it will be necessary for me to recall briefly the evidence proving, or tending to prove, what was clone, or permitted [350] to be done, with the old graveyard both by the city and the public at large. The dedication in 1847 took place before the incorporation of the present city. When the city was incorporated, in 1852, its limits included the graveyard. It is distant now only a few blocks from police headquarters. On the fourteenth of May, 1855, it was resolved by the city council that the location of this graveyard was too near the business thoroughfares of the city, and that immediate steps should be taken for the purchase of other grounds for burial purposes. On the thirtieth of October, 1857, an ordinance was passed accepting the proposition of the Union Cemetery Association to sell the city five acres for a potter’s field. By the second section of the ordinance the land in controversy was “vacated for graveyard uses,” and a penalty ranging from $25 to $100 was imposed on anyone who should inter therein the body of any person whomsoever. In its capacity as trustee and guardian of the rights of the public in this graveyard, the city had no power to change or destroy its use. Trustees v. Council, 33 N. J. Law, 19 ; Mo. Sess. Acts, 1875, pp. 204, 205; City of Hannibal v. Draper, 15 Mo. 634. But, as an arm of the civil government, it was vested with full police power, as early as 1853, “to make regulations to secure the general health of the inhabitants, and prevent and remove nuisances.” This general grant of power has been usually accepted as sufficient to authorize the prohibition of burials, and discontinuance of graveyards, in the populous districts of cities. Bogert v. Indianapolis, 13 Ind. 134; City Council v. Church, 4 Strob. ( S. C.) 306; Coates v. New York, 7 Cow. 585 ; Austin v. Murray, 16 Pick. 127.
The prohibition of future burials destroys at once the interest of the public generally in a graveyard. Only those members of the public who have relatives buried there could have any special interest in it, — an interest to preserve the remains and monuments of the [351] dead. Kincaid’s Appeal, supra; Gumbert’s Appeal, supra; State v. Wilson, 94 N. C. 1015. The effect of such a prohibition in discontinuing the land entirely for graveyard purposes would be soon worked out by the lapse of time. Its effect would be more marked upon a graveyard like the one in controversy than upon an old cemetery filled with graves and costly monuments. It will be observed that the ordinance does not consist only in a positive prohibition of future burials. The import of its language bearing upon the discontinuance of this ground as a graveyard is unqualified, and assumes to vacate the ground for all graveyard uses. The language contemplates and authorizes disinterment, if that should be necessary to complete the vacation of the land for graveyard uses. The subsequent action of the city council and city authorities is in strict accord with this construction of the ordinance. In August, 1866, the city council, by published notice, required all persons who had relatives and friends buried within the square to remove them. The evidence shows that this was very generally done. The city undertaker, while engaged in removing the remains of the unknown to the potter’s field, says that he removed to other places remains which were claimed by friends and relatives. Many removals took place under the direction and supervision of relatives and friends of the dead. But notwithstanding the notice of removal, and the actual removal by relatives, the majority of the remains were left to be removed by the city.
Originally the land in controversy was part of a high knoll or ridge running almost north and south. Its highest elevation was near the northwest corner. Prom this point, it sloped gently towards the south and east, also slightly towards the west, which was bounded on the original plat by Oak street. Locust street, which bounds the square on the east, was graded in 1868 or 1869 by raising it several feet above the square in certain points with earth obtained from the square. The [352] embankment resulted in a pond on the square which subsequently was filled with earth from the square. In 1869 some grading was done on Oak street, and then, or during the gradings which followed, the square was used at times by the city, with its workhouse force, breaking rocks for the streets. In 1870 and 1871 a portion of the north side of the square was taken to fill up Fifth street, which was .in the vicinity. • In 1872 came the grading of Missouri avenue, which bounds it on the north. The grade ranged from five to seventeen feet below the surface of the square. In 1872 or 1874 the further grading of Oak street took place. The grades on Oak street and Missouri avenue left the square many feet above the grade. In the course of time the embankments left by the grades sloughed off, leaving in many places the remains and coffins of the dead exposed to view, In 1878 or 1879 the city completed the grading of the square, reducing its high parts, and bringing up its low parts to a level with the surrounding-streets. It is claimed on the part of defendant that this was necessitated by the grading of Oak street and Missouri avenue, wMqIi left the unsightly banks of the square open to public comment and criticism. On the part of plaintiffs, it is claimed that this final grading of the whole square was in pursuance of a resolution of the city council passed in June, 1877, which reads as follows : “ Be it resolved by the common council of the City of Kansas that the city engineer be instructed to employ the workhouse force, when not otherwise engaged, to grade the old graveyard, and get it in shape for a public parle. ”
There is much evidence in the record tending to prove that the grading of the square went below all the graves in it except, perhaps, a few buried in the low parts of the square on the eastern slope, upon which from four to ten feet of earth has been placed. According to the evidence of the city undertaker, who had a contract from year to year for the removal of remains, [353] and who received a compensation therefor at the rate of $5 a skull, all the remains in the square encountered in the gradings prior to 1878 were removed either by him or friends of those who could be identified. In this testimony he is corroborated by other witnesses. The undertaker did not attend the final grading in 1878, and what was done with the remains then exhumed will be noticed presently. After the final grading the ground was* in other respects improved and ornamented as already stated. Trees were planted, grass sown, walks laid out through it, and it was lighted for the convenience of the public. It has been used for public entertainments, accompanied with music and feasting. It is named and recognized by .the city as a park. No visible grave or monument to perpetuate the memory of the dead is discernible to the visitor. It is used and recognized by the public, as well as the city, as a park for the living, and not as a graveyard for the dead. The public has acquiesced in the change.
It would not be proper for me to close this opinion without some notice of the facts and acts which the defendant pretends are sufficient to preserve this land as a resting place for the repose of the dead, and for perpetuating their memory. During the final grading in 1878 the city authorities discontinued the removal of the remains exhumed, and caused the bones to be gathered up by the workhouse force engaged in the grading, and remterred as near the place from which they were taken as possible. This was done in small pine boxes, procured from a planing-mill, about ten inches wide and deep, and from two to three feet long. Some of the witnesses say that no attempt at preserving the separate identity of the remains was made. Skulls and bones which had no connection with each other in life were frequently thrown with mould into the same box. Other witnesses testify that the individuality of the [354] remains was preserved in the reinterment except in some cases, where a’great many remains were found in one grave. There is a conflict of evidence as to the number of these pine boxes containing unknown bones and mouldering earth, the plaintiffs fixing the number at eleven, while the defendant claims there must have been eighty-four.
There is evidence tending to show that, when the boxes were buried* stakes were driven so as to indicate their location, and that afterwards small stones, eight by ten or twelve inches in surface, took the place of the stakes. These stones had no names on them, but were numbered. They were either placed five or six inches under the earth, or they had sunk to that depth before the trial of this case, as many witnesses testify that they never saw them in the square. Shortly before the trial at Warrensburg, the existence and location of many of these stones, under instructions from defendant’s agents, were ascertained and brought to light by “prospecting” through the square with a sharp iron rod. Some of them which were thus found have been uncovered. One of the stones is said to be in the line of a walk which has been uncovered for sometime, possibly in laying out the walk. It is claimed that Mr. Reinhart, a witness for defendant, has identified the grave of a brother fourteen years old, buried some thirty odd years ago. I have read his evidence carefully, and find in it too much doubt and uncertainty to justify the conclusion he swears to. When the public was removing remains from the ground before it was graded, Mr. Reinhart went to the graveyard for the purpose of ascertaining the location of his brother’s remains, with a view to their removal. He admits that he could not then find the grave. After the grading, he finds in the ground a broken piece of stone, without name or number, which he claims to identify as a part of the base of the tombstone of his brother; and from this he infers that [355] his brother’s grave is there or near by. He never uncovered. the surface to see what was below. It is from evidence relating to these reinterments that the defendant insists that this ground is still preserved for the uses of a graveyard.
There is evidence tending to show that the reinterments made in 1878 were directed by the city authorities for the sole purpose of preventing a reverter of the land. • This was advised by the city engineer as early as 1873, and there were persons present at the reinterments of 1878 who testify that the city engineer and other city officers admitted that such was the purpose still. The defendant’s evidence relating to these reinterments went to the jury for what it was worth. It was fairly susceptible of the construction that it was not a genuine movement in the way of repentance, as ingeniously claimed by defendant’s counsel, to preserve the remains and memory of «the dead, but as a sham and a fraud on the donors and their representatives. The jury must have found that there was nothing in it which could operate as a revocation of the ordinance, notice and previous acts of the city vacating the ground “for graveyard uses.” They must have been satisfied that the use of this land for the purpose of a graveyard could not be continued for ages to come by such a transparent device and weak invention. As this finding is sustained by competent and abundant evidence, it ought not to be disturbed by this court.
It may well be that the donors of this land never actually contemplated any return of it to themselves or their representatives. It is not at all probable that they foresaw the marvelous growth and sudden splendor of the city which has sprung to life around the old graveyard as if evoked from airy nothing by the wand of some mighty magician. But their gift was made, necessarily, subject to the unforeseen changes in the womb of time, and the demand of a higher public weal.
[356] V. It lias been argued by counsel for defendant that, as the donors of this land sold other parcels on the showing of the map or plat which dedicated it to the public use, they must have received value for their dedication in the increased price of the sales, and that they are estopped from claiming a return of the land. It may well be that the dedication of highways and parks furnishes a valuable inducement to purchasers of surrounding property. But I do not think that the proximity of, or convenient access to, a graveyard can be reasonably classed among the inducing causes of the sale of real estate. One witness in this case testifies that he was deterred from buying by reason of the existence of this old graveyard. I do not think that easy and convenient access to cemeteries can be regarded as an inducement which would add any appreciable value to the sale of contiguous property. Upon the whole, I am persuaded that the verdict and judgment are for the right parties, and should be affirmed, and it is so ordered.
Ray, O. J., and Sherwood and Barclay, JJ., concur; Brace, J., dissents; Black, J., not sitting.