The first
question presented upon the rec- ord, is, whether the Stonington Cemetery Association, the party defendant in this motion in error, and the original par- ty plaintiff in the county court, was and is a legal corpora- tion. capable of bringing the original petition to the county court. The 190th
section of the Revised Statutes, p. 183. author- izes “ any individuals, in any town in this state, to associate for the purpose of procuring and establishing a burying- ground or place of sepulture ; and being so associated, they, on complying with the provisions of said section, become a body politic and corporate. The members
Th membersof this association, on the 27th of July, 1849, for the purpose of organizing, as a corporation, under this section, signed certain articles of association, a copy of which they lodged with the secretary of state, and caused to be re- corded in the records of the town of Stonington, where the burying-ground is situated, pursuant to the requirements of this section of the statute. No question is made as to the proceedings being regular in point of form ; but the articles of association, after counting upon the fact that public neces- sity and convenience require, that the Phelps burying-ground Phelps burying-ground [476]*476should be enlarged for public use, go on to say, that they, “ pursuant to the statute in such case made and provided, do hereby, far that purpose, agree to associate together, as a body politic and corporate,” &c
The plaintiffs in error deny, that this is an association pursuant to this section of the statute, on the ground that it does not profess to associate for the purpose of procuring and establishing a burying-ground, but for the purpose of enlarging one already established, which, it is insisted, is for an object entirely different. We think the construction we are asked to give to this statute, too narrow. Persons are authorized to associate for the purpose of procuring and establishing a place of sepulture. This can mean nothing else than that they are authorized to associate, in order to procure land for that purpose, and establishing it as such. This may as well be done, by enlarging an old established burying-ground, as by purchasing land for the purpose of establishing one, in a place entirely separate from any former place of the sort. In both cases, it is procuring land for a place of sepulture, and establishing it as such.
We are referred, on this question, to cases going to show, that statutes authorizing the taking of land, by compulsory process, should be construed strictly. No doubt that is a general principle; but we do not see its applicability to this question. In the mere organization of a corporation for the purpose of establishing a burying-ground, there does not seem to be anything that should require more care, than if it was organized for any other purpose. When the corporation is once organized, and they attempt to take private property, without the consent of the owner, it is right to hold them, and all others in like circumstances, to a clear and plain exercise of the power expressly granted.
The cases to which we are referred would then apply; and they may well enough apply to other parts of this case ; but have no particular force on the question of the mere organization of the corporation.
If, then, the original petitioners were properly organized as a corporation, for the purpose of procuring and establishing a burying-ground, were they authorized to institute this proceeding "
By a statute of 1849 (acts of that year, p. 8.) it is provided, [477]*477that “ whenever any community or association, duly formed, according to the provisions of the 190th section of the act concerning communities and corporations, wish to enlarge the limits of a burying-ground, or place of sepulture, and cannot agree with the owner or owners of the land proposed to be taken for such purpose, they may apply, by petition, to to the county court.’’
The original petition was brought and prosecuted under this statute ; and no question is made but that the petitioners, being duly incorporated, the proceeding itself was regular, and is authorized by the strict letter of this law. But it is made a question, whether they can proceed, in this application, to enlarge a burying-ground, in which, it is claimed, they have no interest.
It is not, in our opinion, very material to enquire, in whom, at the present tune, is the fee of the one acre of land, known as the Phelps burying-ground. It appears to have been used as a private or public place of sepulture, for a period of more than sixty years ; the ground being now nearly covered with graves ; that for the last twenty-five years and more, the practice has been, to bury those persons who had relatives lying there, without asking leave ; but that since the year 1823, when it was intended to bury strangers in that ground, leave has usually been asked of the Phelps family, or of some one who had friends buried there ; that leave to bury there has never been refused to any one ; and that all the members of this association, and many other inhabitants of Stonington, have friends buried in that ground. Now, under these circumstances, whether Mrs. Edwards, one of the plaintiffs in error, as a grand-daughter and one of the heirs? of Joseph D. Phelps, who died previous to 1817, more than thirty years since, has, in common with the other heirs of her grand-father, an interest in the fee of this burying-ground, does not seem to be material. It is very probable, that she has such an interest. The ground was distributed, with other lands, to Joseph D. Phelps, in 1809: and it does not appear, that he and his heirs ever lost their title to it, in any way, unless the use of it as a burying-ground, in the manner above stated, has deprived them of it. Be that as it may, we think the right of burial, which the members of this association, and all others having friends buried in that, ground, [478]*478have exercised, for so long a period, is conclusive evidence -.of their rights to bury there ; and that the right of burial may exist, either in the public or in private persons, and the fee of the soil be in others, we presume is too clear for argument.
It appears, then, that, all the members of this association,, have an interest in the Phelps burying ground, having a right to bury their dead in that gronnd. This, we are aware, does not amount to a strict technical interest in the corporation, as such, in the ground in question ; and yet it i~ impossible to separate the interest of the individual members, in such a corporation as this, from the interest of the corporation itself.
The only object of the corporation was, to procure for its members and the public a place of burial ; and it would not seem to he any departure from principle, to treat it as the trustee of its members for this purpose. The corporation of a city or village, it has been held, may apply for an injunction against a nuisance to the inhabitants, erected upon its public streets or squares ; not because the corporation, as such, has any title to the property itself-it obviously has no such title-nor is it because its citizens, strictly speaking, have any title to the property ; for they have none that is not common to the whole public ; yet the chancellor, in the case of the trustees of Watertown v.
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The first
question presented upon the rec- ord, is, whether the Stonington Cemetery Association, the party defendant in this motion in error, and the original par- ty plaintiff in the county court, was and is a legal corpora- tion. capable of bringing the original petition to the county court. The 190th
section of the Revised Statutes, p. 183. author- izes “ any individuals, in any town in this state, to associate for the purpose of procuring and establishing a burying- ground or place of sepulture ; and being so associated, they, on complying with the provisions of said section, become a body politic and corporate. The members
Th membersof this association, on the 27th of July, 1849, for the purpose of organizing, as a corporation, under this section, signed certain articles of association, a copy of which they lodged with the secretary of state, and caused to be re- corded in the records of the town of Stonington, where the burying-ground is situated, pursuant to the requirements of this section of the statute. No question is made as to the proceedings being regular in point of form ; but the articles of association, after counting upon the fact that public neces- sity and convenience require, that the Phelps burying-ground Phelps burying-ground [476]*476should be enlarged for public use, go on to say, that they, “ pursuant to the statute in such case made and provided, do hereby, far that purpose, agree to associate together, as a body politic and corporate,” &c
The plaintiffs in error deny, that this is an association pursuant to this section of the statute, on the ground that it does not profess to associate for the purpose of procuring and establishing a burying-ground, but for the purpose of enlarging one already established, which, it is insisted, is for an object entirely different. We think the construction we are asked to give to this statute, too narrow. Persons are authorized to associate for the purpose of procuring and establishing a place of sepulture. This can mean nothing else than that they are authorized to associate, in order to procure land for that purpose, and establishing it as such. This may as well be done, by enlarging an old established burying-ground, as by purchasing land for the purpose of establishing one, in a place entirely separate from any former place of the sort. In both cases, it is procuring land for a place of sepulture, and establishing it as such.
We are referred, on this question, to cases going to show, that statutes authorizing the taking of land, by compulsory process, should be construed strictly. No doubt that is a general principle; but we do not see its applicability to this question. In the mere organization of a corporation for the purpose of establishing a burying-ground, there does not seem to be anything that should require more care, than if it was organized for any other purpose. When the corporation is once organized, and they attempt to take private property, without the consent of the owner, it is right to hold them, and all others in like circumstances, to a clear and plain exercise of the power expressly granted.
The cases to which we are referred would then apply; and they may well enough apply to other parts of this case ; but have no particular force on the question of the mere organization of the corporation.
If, then, the original petitioners were properly organized as a corporation, for the purpose of procuring and establishing a burying-ground, were they authorized to institute this proceeding "
By a statute of 1849 (acts of that year, p. 8.) it is provided, [477]*477that “ whenever any community or association, duly formed, according to the provisions of the 190th section of the act concerning communities and corporations, wish to enlarge the limits of a burying-ground, or place of sepulture, and cannot agree with the owner or owners of the land proposed to be taken for such purpose, they may apply, by petition, to to the county court.’’
The original petition was brought and prosecuted under this statute ; and no question is made but that the petitioners, being duly incorporated, the proceeding itself was regular, and is authorized by the strict letter of this law. But it is made a question, whether they can proceed, in this application, to enlarge a burying-ground, in which, it is claimed, they have no interest.
It is not, in our opinion, very material to enquire, in whom, at the present tune, is the fee of the one acre of land, known as the Phelps burying-ground. It appears to have been used as a private or public place of sepulture, for a period of more than sixty years ; the ground being now nearly covered with graves ; that for the last twenty-five years and more, the practice has been, to bury those persons who had relatives lying there, without asking leave ; but that since the year 1823, when it was intended to bury strangers in that ground, leave has usually been asked of the Phelps family, or of some one who had friends buried there ; that leave to bury there has never been refused to any one ; and that all the members of this association, and many other inhabitants of Stonington, have friends buried in that ground. Now, under these circumstances, whether Mrs. Edwards, one of the plaintiffs in error, as a grand-daughter and one of the heirs? of Joseph D. Phelps, who died previous to 1817, more than thirty years since, has, in common with the other heirs of her grand-father, an interest in the fee of this burying-ground, does not seem to be material. It is very probable, that she has such an interest. The ground was distributed, with other lands, to Joseph D. Phelps, in 1809: and it does not appear, that he and his heirs ever lost their title to it, in any way, unless the use of it as a burying-ground, in the manner above stated, has deprived them of it. Be that as it may, we think the right of burial, which the members of this association, and all others having friends buried in that, ground, [478]*478have exercised, for so long a period, is conclusive evidence -.of their rights to bury there ; and that the right of burial may exist, either in the public or in private persons, and the fee of the soil be in others, we presume is too clear for argument.
It appears, then, that, all the members of this association,, have an interest in the Phelps burying ground, having a right to bury their dead in that gronnd. This, we are aware, does not amount to a strict technical interest in the corporation, as such, in the ground in question ; and yet it i~ impossible to separate the interest of the individual members, in such a corporation as this, from the interest of the corporation itself.
The only object of the corporation was, to procure for its members and the public a place of burial ; and it would not seem to he any departure from principle, to treat it as the trustee of its members for this purpose. The corporation of a city or village, it has been held, may apply for an injunction against a nuisance to the inhabitants, erected upon its public streets or squares ; not because the corporation, as such, has any title to the property itself-it obviously has no such title-nor is it because its citizens, strictly speaking, have any title to the property ; for they have none that is not common to the whole public ; yet the chancellor, in the case of the trustees of Watertown v. Cowen, 4 Paige, 510, found no difficulty in considering the corporation as the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to protect those rights against the erection of a nuisance. See also the Mayer &c. of London v. Bolt, 5 Ves. 129.
But however this may be, when we take into consideration the very comprehensive language of the statute, under which the petition was originally brought, we think it no strained construction to say. that the petitioners have all the interest in the subject matter, that the legislature intended to require.
It was suggested in argument, that the effect of this proceeding, if sustained, would be to deprive the owner of the Phelps burying-ground of their rights there. This suggestion is wholly unfounded. That ground has not been taken, nor.is it in any way affected, by this proceeding. The heirs [479]*479of Joseph D. Phelps still remain the owners of the fee in the ground, if they were so, when the petition was brought; and they, in common with the members of this association, and all others who have acquired the right to bury there, will continue to enjoy their rights in the old ground, in the same manner as before.
Again, it is made a question, whether the Phelps burying-ground is not private property, belonging solely to the heirs of Joseph D. Phelps ; and, if so, it is claimed, that this application to enlarge it, cannot be sustained.
It is not necessary to decide, whether an association, under this late statute, could be sustained, for the purpose of enlarging a private burying-ground, in which neither the association itself nor any of its members, had any interest.
It seems difficult to say, that it could do so, without holding that it could apply, not merely to enlarge a burying-ground, but also to establish one entirely new, and disconnected with any other. It will no doubt be worthy of consideration, when such p question arises, whether it can be done. But it has already been suggested, that the right of burial in the old ground, being in the association or «its members, will give the association a sufficient interest to enable them to enlarge it; and whether this right of burial is in the whole public, or is confined to particular individuals, as in this case, to such persons as have friends buried in the old ground, can make no difference. If the right in the old ground is not public, in every sense of the term, it will not affect the public right in regard to that part of the ground which is added to it» by this enlargement. The part added will be public, subject to such regulations and restrictions as the by-laws of the association may make; and that is enough to answer the material part of this claim, viz. its being subject to the objection of taking private property for private use only.
It is claimed, that it appears on the face of the proceeding, that more than three acres of land have actually been taken; and consequently, that the excess has been taken, without any compensation being made therefor.
This was not assigned for error in the superior court; but perhaps that is not a sufficient answer to the claim, if the fact appeared upon the face of the record. But it does not so [480]*480appear. The most that can be claimed, is, that there may perhaps be some room to duubt, whether all the land which is professedly taken, three acres, will cover all the land, which, with the old burying-ground, goes to make up the four acres now included in the survey of the whole ground, including the enlargement.
The committee proceeded to take and assess the damage for taking three acres only; and they treat the old burying-ground as containing one acre. By the deeds, the last of which was in October, 1792, from William Ckesehrough to Chas. Phelps, Esq., the father of said Joseph D. Phelps, it is called “ one acre,” and is described as such.
Hence the-committee say, that the original ground included one acre of land ; but the walls which were erected around it, do not make quite an acre. These wails, it appears, are a modern erection. They were erected by Chas. H. Phelps, father of one of the plaintiffs, and under whom they both claim. They were erected ten or twelve years since. In the first deed of th'rs ground from Chas. Phelps to William Chesebrough, it is said to be conveyed “ for the purpose and intent of a burying-place, and not to be improved in any other way and is described as “one acre of land on the farm I have this day bought of said Chese-brough, where his honoured father and mother were buried, to be laid out square, in the most convenient manner for a burying-place.” Under this deed, the lines of the one acre do not appear to have ever been actually surveyed, until the committee did it, for the purpose of surveying the addition to it. The only attempt to fix the lines, was the erection of the fence, some ten or twelve years since, by the proprietors of the Phelps farm. Doubtless they intended to include the one acre originally deeded ; but the fence did not include it all. Under these circumstances, it is impossible to say, that more land has been taken than three acres. The old ground contained one acre ; there are but four in the whole ground as enlarged. It is not pretended that the lines have been so run as to leave out any part of the old ground. We do not see, therefore, that any more land has been taken than the three acres for which the committee have assessed damages.
Upon the whole case, then, we are not satisfied there was [481]*481any error in the judgment of the superior court; and we or der judgment to be entered for the defendant in error.
In this opinion the other Judges concurred.
Judgment affirmed.