Young v. Board of Com'rs

51 F. 585, 7 Ohio F. Dec. 171, 1892 U.S. App. LEXIS 1802

• Court: U.S. Circuit Court for the District of Northern Ohio
• Decided: May 21, 1892
• Status: Published

Opinion

Taft, Circuit Judge,

after stating the case as above, delivered the opinion of the court.'

This is an action at law. The form of procedure is under the Code of Ohio, but the remedy is substantially that of ejectment at common law. Plaintiff must recover, if at all, on his title as it is. If equitable remedies are needed to perfect his right of possession, he fails. In like manner, only defenses at law are available here. The defense of estoppel in pais, pleaded in the answer, would seem to be of equitable cognizance, and hardly to be urged or considered here. However that may be, if it were a valid plea, there is no evidence to support it, because the courthouse was erected 10 years before the plaintiff (who was not in Youngstown from 1848 to 1888) knew anything of the abandonment of the burying ground, or its subsequent use for general county purposes. The averments of the reply which charge fraud in the procurement of the quitclaim deed and a mutual mistake, and upon which are based prayers that ‘the deed be set aside or reformed, present matters only of equitable cognizance, and are wholly irrelevant to this issue. It is questionable practice, even under the Ohio Code, for the plaintiff to ask for new and substantial relief in a reply, Bowman v. Railroad Co., 1 Ohio Cir. Ct. R. 64;) but, however this may be, the averments and prayers referred to are out of place in the action of ejectment.

Plaintiff’s- title is good, unless it is defeated by the common law dedication of his ancestor, John Young, or his own quitclaim deed. The dedication was to the public, for use as a burying ground. Common-law dedications are said to operate by way of estoppel. Fuilton v. Mehrenfeld, 8 Ohio St. 440: Wisby v. Bonte, 19 Ohio St. 238. Acquiescence by the owner in the use of his land by the public estops him. from asserting a right of possession excluding such use. When, however, the public voluntarily and finally abandons the use, there is no room for further estoppel. The easement of the public—for such it only is— ceases, and the holder of the title in fee may resume exclusive possession and beneficial enjoyment. The estoppel, of course, can only be commensurate with the specific use, acquiescence in which gave rise to it; and when that use lawfully ceases the dedication has spent its force, and the land reverts to the dedicator and his heirs. A common-law dedication is for the benefit of the public, and every member thereof has an interest in it. Legislation may vest in the governing body of a municipal corporation such complete representative powers as to enable it to bind the general public by an abandonment of a public easement. If the abandonment is lawful, i. e., if made in such a way as to bind the public and all beneficially interested, the easement ceases, and the land reverts. It often happens that the corporation, or its governing body, is merely a trustee for the preservation of the easement, and has no power or discretion to abandon it. In such a case, if the trustee misuses the land, in violation of the rights both of the dedicator and of the cestuis que trvMent, the dedicator cannot repossess himself, but he or the beneficiaries of the easement may apply to a court of equity to enjoin the misuser, and compel the trustee to allow a resumption of the casement. In such a case, the abandonment of the easement not having been lawful, there is no reverter. Viewed in this light, the authorities are not in conflict. The language of Mr. Justice McLean in Barclay v. Howell's Lessee, 6 Pet. 498, is relied on by the defendants as establishing a different rule. He says, (page 507:)

“If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the trust by restraining the corporation, or by causing the removal of obstructions. But, even in such a case, the property dedicated would not revert to the original owner. The use would still remain in the public. ”

This language is quoted with approval by Judge Tiiukman, in Willianns v. Society, 1 Ohio St. 478-496, with the intimation that it is only where the use becomes impossible that the land will revert to the original donor. The same doctrine thus qualified is to be found in Le Clercq v. Gallipolis, 7 Ohio, 218-221; Webb v. Moler, 8 Ohio, 548; and in Dill. Mun. Corp. (4th Ed.) § 653. The principle has application only to cases where the misuser or abandonment is by a trustee controlling the easement and failing to discharge his or its duty. It certainly does not apply where all the persons beneficially interested give up their rights in the easement, for it would be a novel doctrine that an easement may not be abandoned by the public. Indeed, in the very case of Barclay v. Howoell's Lessee, supra, Justice McLean says, (page 513:)

“By the common law the fee in the soil remains in the original owner, where a public road is established over it; but the use of the road is in the public. The owner parts witli this use only, for if the road shall be vacated by the public, he resumes exclusive possession of the ground.”

If a public body is more than a mere trustee in respect to its control; of an easement, if it may act on its discretion for the public to say whether the continued enjoyment of an easement is really beneficial to the public, if, in other words, imderthe law it is the public for this purpose, then it may lawfully abandon it. In every case, therefore, where a reverter of land dedicated to a specific use is claimed by the original owner on the ground of abandonment or misuser, the question whether reverter has taken place, or whether the owner should be remitted to a court of equity to enforce the dedicated use, must depend upon the further question whether the abandonment of the dedicated use was lawful, i. e., not in violation of the rights of any the cestuis que trustent. If it was lawful,.the land reverts. There is no escape from this conclusion; otherwise, a dedication to a specific use, and acceptance by the public, is a contract, by the public forever to continue the use, which neither the public nor the public and the dedicator together can rescind,—a proposition which, I apprehend, will hardly be advanced.

We come, therefore, to the question, was the abandonment of lot No. 96-as a graveyard lawful? The removal from the lot in 1865, 1866, 1867, and-1868 of the remains of many buried there, by their friends, did not constitute an abandonment. The lot did not thereby lose its distinctive character as a burying ground. Nor did the neglect to keep the ground properly fenced, nor the digging and hauling of gravel from its.surface, have that effect. . But when, on December 22, 1868, the council of the city of Youngstown passed an ordinance prohibiting further interments in lots 95 and 96, and ordering the removal of the remains of those buried there, and the removals were accordingly made, this was a lawful abandonment of the lots as a cemetery. It is quite possible "that .the council did not so represent the public’s interest in the burjdng ground as to be able to finally abandon it for them. With respect to it, the council was probably only a trustee. But the council, as the controlling authority of the- city-, thereby exercised lawfully the police power vested in the state government which the legislature .had delegated to it. ..As a measure necessary for public health and comfort, the legislature might lawfully enact that the burying grounds should be removed from cities of the second class,—of which Youngstown was one,—or it might delegate to its council power to> ordain the same thing. Dill. Mun. Corp. (4th Ed.) § 372 et seq.; Kincaid’s Appeal, 66 Pa. St. 411; Campbell v. City of Kansas, 102 Mo. 326, 344, 13 S. W. Rep. 897. By the amendment of March 30, 1859, (56 Ohio Laws, 88,) to section 23 of the Municipal Code of May 3, 1852, councils of cities and villages are given power to pass ordinances to prevent interments of the dead within the corporate limits, and to cause removal of bodies interred in violation thereof. By section 20 of .the same the3 are given power to prevent annoyance or injury within the limits of the corporation from anything dangerous or unhealthy, and to cause any nuisance to be abated. 2 Swan & C.'p. 1498, § 20. See, also, pages 1506, 1507, §§.'3.2,'34,' Legislation of this character has been held'inthe authorities cited above to delegate, power, to the council to pass.an ordinance like that of the council of Youngstown under consideration. The abandonment of the graveyard was therefore lawful, and reverter followed. A continuance of the use would be in violation of a city ordinance. The use would thus be unlawful, and therefore, in legal contemplation, it would become impossible. According to all the authorities, reverter is a consequence. Nor is there any room for the equitable doctrine of ey pres to prevent a reverter on abandonment. A dedication, and especially a common-law dedication, is of the land for a specific aso. Jt is not within the presumed intention of' the dedicator that the land is to bo sold, and its proceeds devoted to a similar use, if the use of the particular land becomes impossible. No such result could follow from the theory of estoppel in pais,- on which the doctrine rests. No title is conferred for the purpose of alienation. Indeed, it has been expressly held in this state that, even under a statutory dedication, where by the terms of the statute a title in fee does pass, a court of equity cannot, in the case of land dedicated for a schoolhouso and school purposes, where this use has become impossible, decree a sale, and the investment of the proceeds in a new lot for similar purposes'. Board of Education v. Edson, 18 Ohio St. 226. A fortiori will such a power not be exercised where the dedication is to be enjoyed not by force of a grant and change of title, but by force of estoppel. In’ Campbell v. City of Kansas, 102 Mo. 326, 346, 13 S. W. Rep. 897, land had been dedicated for a cemetery, and was used as such. Subsequently the city council, by ordinance, vacated the land for graveyard purposes, and ordered the bodies there buried removed. The; city then laid off the land as a park, and improved it as such, and in all this the public acquiesced. It was held, in a well-considered opinion, that the land reverted to the original owner on the lawful abandonment of the cemetery as such by the city. Tt follows that, if defendants’ case rests alone on the common-law dedication of .John Young, the abandonment by the city of the burying ground, as such, causes a reverter to his heirs, and gives the plaintiff a title, with immediate right to possession.

There remains to consider the quitclaim deed of the plaintiff to the village of Youngstown, which, of course, by its terms, inured to the benefit of the city of Youngstown as successor of the grantee. The declarations of the grantor as to his intention in making the deed are wholly incompetent, whether contained in the contemporaneous writings or in his testimony, and such evidence we entirely disregard. The circumstances which existed in the knowledge of both parties alone are to he considered in construing the language used. In this view, the letters of Hoffman and Tod, in so far as they communicated the situation in respect to the cemetery, the litigation to protect it, and the procurement of the act of the legislature, were competent to show that Young executed, and the village of Youngstown accepted, the deed, with that situation before them. Hoffman’s statement in his memorial to the village council as to the effect of the quitclaim deed is incompetent. If Young himself had written the memorial, it could not have been used fo aid in the construction of the deed under the principle already stated, Still less is it admissible as Hoffman’s statement. Whatever may have been Hoffman’s relations to Young in respect to other matters, he was acting, in securing the quitclaim deed from Young, not for Young, but for the plaintiffs in the suit to protect the graveyard. It was as attorney for them that he presented the memorial to council,' and nothing he stated therein was made as Young’s agent. The council accepted the deed on his advice, and consented that his relation to the suit against Niblock as attorney for the plaintiffs should continue while it was thereafter being prosecuted in the name of the village. In so far as the memorial acquainted the' council with the actual status of the suit, the act of the legislature, etc., it was competent to show the facts in the light of which the deed was accepted.

Coming now to consider the surrounding circumstances, it is quite evident that the fancied need for a quitclaim deed was to secure a legal title in some one to bring suit for. trespass on the cemetery grounds against Niblock. It was to make up for the defect in the original dedication, which did not pass the title. It may be true that neither the act of April 3, 1867, nor such a deed, was necessary for this purpose, and that trespass might have been maintained either in the name bf the village, by virtue of the twenty-third section of the Municipal Code of '1852, as amended March 30, 1859, (56 Ohio Laws, 88,) or, if not, then in the name of the township trustees, under the act of April 13, 1865, (62 Ohio Laws, 145,) which gave into their charge such public burying grounds as were not in charge of .a municipal corporation; but we know that the persons interested were doubtful upon this point, and wished both the act and the deed to make their position impregnable. If Young had given a simple quitclaim deed to the village it would have conveyed all his interest, and vested a fee simple in the- village, without regard to his purpose in giving it, for such would be the necessary effect of the words of the deed. No inference from the ■ circumstances could affect its legal purport, or ingraft a limitation which there was no language to import. The grantor, in his deed, however, used a clause not necessary in a simple quitclaim deed, upon the construction of which must t mi the decision of this case. He granted and quitclaimed the two lots to the village and its successors, “to be under the authority and control of its proper council and municipal authority, in conformity with the act of the legislature in that behalf.” What'act of the legislature is here referred to? The subject-matter of the conveyance was a burying ground. The act referred to naturally, therefore, relates to the power of village councils over burying grounds. If the expression -here used had been in conformity with the law's “or statutes of Ohio in that behalf,” the statutes or laws referred to must be construed to be such law's then in force as'conferred upon the council of a village authority and control over burying grounds conveyed in fee to the corporation; that is, those laws defining the power of the council in respect to the land conveyed after the conveyance had taken effect. But the use of the singular—“the act of the legislature of Ohio in that behalf”—shows that some single and particular act was in the mind of the grantor. So far as I have been able to find, the control and authority to be exercised by village councils over burying grounds owned by the corporation in fee in force when this deed was executed, were to he gathered, not from one act of the legislature, hut from several. Section 23 of the Municipal Code, as amended by the act of March 30, 1859, (56 Ohio Laws, 88,) the third and sixth sections of the act of March 17, I860, (57 Ohio Laws, 46,) the second and third sections of the act of March 17, 1860, (57 Ohio Laws, 44,) and section 2 of the act of March 29, 1867, (64 Ohio Laws, 70, 71,) and (possibly other acts, all affected the duties and powers of village councils in regard to cemeteries owned in fee by the corporations. Were there no other acts than these to which the language of the deed could be referred, the singular number of the word “act” would not be significant of anything except a slip by the draughtsman of the deed. But the surrounding circumstances show that there was one act, the passage of which had been especially procured “in that behalf,” i. e., for the purpose of defining the authority and control to he exorcised by the village council of Youngstown over the very land by this deed conveyed. That act applied to burying grounds which had been actually, but not formally, dedicated by the original owner, and in which, therefore, the public had only an easement. The burying grounds conveyed by this deed were of exactly such an origin. The description of them would seem to have been framed for the purpose of showing that they came within the terms of the act, fox they are said to have been designated as a burying ground by John Young, the ancestor of the grantor, on his town plat, and to have been occupied as such for over 50 years. There are three distinct statements in the description as to the actual occupancy of the lots for burial purposes. When we consider, then, that one act of the legislature satisfied the reference in the deed,—by defining the power and control of village councils over burying grounds exactly like the one conveyed,—and that no other single act will precisely correspond to the use of the singular in the words “the act of the legislature,” etc..; and when we further consider that the deed was given and this act was passed in the same transaction, so to speak, and that at the time of the execution of the deed the passage of the act and its object were facts fresh in the minds of both parties,—we are brought irresistibly to the conclusion that “the act of the legislature of Ohio in that behalf” was this act, entitled “An act for the protection of certain graveyards and burial grounds,” passed April 3, 1867, (64 Ohio Laws, 102.)

It follows that the act must be read into the deed. The clause, “to be under the authority and control of tire proper council or munieipral authority” of the village, is, in fact, a description of the power of the village itself with respect to the land to he conveyed, for in the view of the grantor the council is to act for the village. The clause may therefore be properly interpreted, with the foregoing aids to its construction, as if it read: “Grant,” etc., “to the incorporated village of Youngstown and its successors, [the burying ground described in fee,) with the same power, and control over it that is conferred on the village and its council with respect to this land by the act of April 3,1867.” Now, what were the powers conferred on the village and its council by the act? The subject-matter of the. act was burying grounds in which the public had a mere easement, and nO title. The act attempted to change an easement into a title to land, Doubt as to the power of the legislature to do this was probably what led to the procurement of the quitclaim deed. The deed confers the title which the act purported to convey. The act requires the council to take possession, control, and charge of the ground, and preserve and protect the same; to make such ordinances, sales, and regulations as may be necessary and proper for said purposes, and consistent with the health and welfare of the inhabitants; to institute suits to recover possession of the graveyards; to remove trespassers therefrom, and to recover' damages for injuries thereto. The word “sales” is probably a mistake in printing or enrollment; the proper word in that connection being “rules.” But, taken as it is, it of course .refers only to sales of lots in the burying grounds for burial purposes, because the sales are to be such as are necessary for “said purposes,”?, e., the possession, control, protection, and preservation of the burying grounds. It could not have been the intention of the legislature to transfer the beneficial interest of the owner in fee of the burial ground to the village so as to permit an alienation of the land. It would have been entirely beyond its power. Le Glercq v. Gallipolis, 7 Ohio, 217; Board of Education v. Edson, 18 Ohio St. 221. The act, properly construed, therefore, only confers upon the village the powers and control over the burying ground which the public Avould have in such ground dedicated for burial purposes at common law. It fixes the trustee to preserve the rights of the public in a common-law dedication. The authority and control of council is limited by the act to the preservation of such rights, and by reading the act into the deed the same limitation upon the fee therein conveyed is created. This conclusion cannot be escaped. We have aiready discussed the limits of the right of the public in an easement dedicated at common law, and have found that on a laAvful abandonment of the specific use for which the dedication was made there is a reverter to the dedicator and his heirs. No reason can be given why the same result must not folloAV, when, as here, the naked title in fee is added to the. easement. The right of beneficial enjoyment is not thereby increased. The fee, then, is Avhat is called a “qualified,” “base,” or “determinable” fee, the title reverting on the abandonment of the use, during the continuance of Avhich, though perpetual, the fee would have remained vested. The effect of the deed here was to put the parties in exactly the same situation that they Avould havebeen in,had the dedication of John Young, in 1802, been in accordance with the statute then in force. Since the territorial act of 1800 for recording town plats, (1 Chase, St. p. 291,) down to section 2604 of the Revised Statutes,—see Act Feb. 14, 1805, § 2, (1 Chase, St. p. 502,) and Act March 3, 1831, (3 Chase, St. p. 1846,)—a statutory dedication has been deemed “a sufficient conveyance to vest the fee of such parcels as are therein expressed, named, or intended to be for public uses in the county in Avhich such town lies, in trust' to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.” This is to say that a statutory dedication shall be a naked legal title, with the same beneficial interest enjoyed by the public in an easement by common-law dedication. As wo have seen, the quitclaim deed effects exactly this result. The statutory' dedication, just like the deed, operates by way of grant, and not by estoppel; but the effect of abandonment of the use is the same as if the’ fee bad not passed. The fee is a base fee, reverting to the grantor on a failure of the use. The supreme court of Ohio has authoritatively settled what effect upon a statutory dedication abandonment of the uso has. In Board of Education v. Edson, 18 Ohio St. 221, the owner of a fee dedicated a lot under the statute “for school purposes, and on which to erect sehoolhouses.” By the location and use of a railroad and station the lot upon which a schoolhouse had been built became unsuitable for school purposes, and a petition was filed asking the court to decree the sale of the lot and the use of the proceeds for the purchase of a better site. This application, the supreme court held, must he denied. The court say, (page 226:)

“Without determining whether, under the dedication, the lots could be properly used lor school purposes other than the erection of sehoolhouses thereon, it is enough to say tiiat the dedication is of Ike land, and not of its value or proceeds. It confers no power of alienation discharged of the use by which the purpose of the dedication might be utterly defeated. 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. Williams v. Society, 1 Ohio St. 478, (per Thurman, J.;) Le Clercq v. Gallipolis, supra, (per Lane, J.)”

Exactly the same principle is enforced in Zinc Co. v. La Salle, 117 Ill. 411, 8 N. E. Rep. 81, and Gebhardt v. Reeves, 75 Ill. 301, under a stab utory dedication which passed the fee by way of grant. The court here said the fee was a base or determinable fee, reverting on abandonment of the use. See, also, Hooker v, Utica, etc., Turnpike Road Co., 12 Wend. 371.

Counsel for the defendants contend that there is a distinction between a grant by deed and a dedication for a particular or specific use, and that a condition subsequent cannot bo created in a deed by limiting the use, unless there be a clause of re-entry for forfeiture; and several strong cases are cited to sustain the claim with respect to a deed. Raley v. Umatilla Co., 15 Or. 180, 13 Pac. Rep. 890; Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church v. Old, Columbia, Public Ground Co., 103 Pa. St. 608. In Taylor v. Binford, 37 Ohio St. 262, the supreme court of Ohio declined to decide whether the law of Ohio was in accordance with these authorities, and the question is an open one in this state. But'these cases do not apply in the construction of the deed at bar. Here the conveyance is in fee to the village to exercise certain defined possession and control over the land, namely, that possession and control exercised by the public over an easement acquired' by common-law dedication. The fee reverts, not by entry after condition broken, but by a simple termination of the estate on the impossibility of exercising the possession and control for which it was given. The case of Siegel v. Herbine, decided by the supreme court of Pennsylvania, (23 Atl. Rep. 996,) is very like the one at bar. In that case a deed was made to county commissioners and their successors for a strip of land adjoining a prison lot and wall, “reserving unto the grantor, his heirs and assigns, the free use of the premises so granted for an open yard, garden, or grass lot, with the rents, issues, and profits, to hold unto the said commissioners and their successors, for the use that it shall remain forever unbuilt on, in order to prevent prisoners making their escape over the said prison wall by means of any building to be erected contiguous to said wall.” This was held to pass a fee to the county commissioners, but from the express declaration of purpose there was held to arise a necessary implication of the exclusion of every other purpose, which made the fee a base or qualified fee requiring a reverter to the grantor on abandonment of the prison by the commissioners. The supreme court of Pennsylvania renders no opinion, but simply approves the learned opinion of Judge Endlxch in the court below. In this case the distinction is pointed out between those authorities which hold that the mere expression of a purpose does not debase a fee and those in which the language is of a character, either in terms or by necessary implication, to constitute such a reservation of the grant as to debase it. He says:

“The qualification must be found in the instrument itself. Union Canal Co. v. Young, 1 Whart. 410; Kerlin v. Campbell, 15 Pa. St. 500. But no especial or technical words are required to establish it. 2 Amer. Lead. Cas. p. 23. ‘The construction of a deed, as to its operation and effect,’ says Kent, speaking of this very matter, ‘ will, after all, depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract in the given case.’ 4 Kent, Comm. 132. What is needed is that the deed, on its face, contain a reservation, or declare a specific purpose for which the land was conveyed, and from which the reservation may be implied. Catón, J., in Adams v. Logan Co., 11 Ill. 336. Of course, the mere expression of a purpose will not, of and by itself, debase a fee. ”

See, also, Kirk v. King, 3 Pa. St. 436; Scheetz v. Fitzwater, 5 Pa. St. 126; Campbell v. City of Kansas, 102 Mo. 326, 13 S. W. Rep. 897, and eases there cited.

The quitclaim deed of Youixg, by reading the act of 1867 into the clause limiting the powers of the village council, shows very clearly the intent of the grantor to limit the effect of the grant to the interest enjoyed by the public under his father’s dedication, and debases the fee to that extent. It follows that the lawful abandoxxment of the burying ground by the city council, and the impossibility of further user as such, caused a reverter of the fee to Yoxxng, and a judgment of ouster must be entered iix his favor against the defendants.

In the action for mesne profits, the plaintiff is, in view of the plea ot the statute of limitations, only entitled to recover the rental value of the property from a time four years before the bringing of the action. Sec-lion 4982, Rev. St. Ohio. The action was begun July 9, 1889. The rental value of lot No. 96 will be fixed at $1,000 a year, and the amount of recovery for which judgment must be entered will be the rental value from July 9, 1885, to the date of entering judgment.