Trefry v. Younger , 226 Mass. 5 ( 1917 )

Crosby, J.

This is a bill in equity brought to restrain the defendants from entering upon certain real estate alleged to be owned by the plaintiff, and removing therefrom soil, gravel and other materials. The.case was referred to a master who has found certain facts, and a decree has been entered in favor of the plaintiff substantially as prayed for in the bill.

For a considerable period of time before April 12, 1913, (how long does not appear in the record,) one Hawkes was the owner of a tract of land consisting of several acres, situated in Marblehead on the outskirts of the town and near a town cemetery. He laid out a burial lot upon the land for the use of his family and also sold numerous burial lots to others upon the northerly end of the tract. The master states that it did not appear what instruments of title were given to the purchasers, or whether any of them was recorded in the registry of deeds. There was evidence that Hawkes had kept a book in which he had made a record of the lots sold, but that this book had been lost. On April 12, 1913, Hawkes conveyed by quitclaim deed to the defendant Martin “all my interest in the unsold lots the land in Marblehead, aforesaid, locally known as Harbor View Cemetery;” then follows a recital of the adjoining owners. This deed was acknowledged and was duly recorded in the registry of deeds.

Later in the same year, Martin conveyed to the defendant Younger by three several instruments which are all substantially in the same form, certain lots in the cemetery tract. These conveyances are under seal and in the form of a grant; they convey by number the lots “in Harbor View Cemetery, in said Marble-head, to be used for the purposes of burial,” and run to the grantee “and his heirs forever;” they have not been recorded in the registry of deeds.

Afterwards a judgment was obtained against Martin by one Hollis, and upon an execution sale the land was bid off by the plaintiff, who received from the deputy sheriff who made the sale a deed dated November 7, 1914, which was duly recorded. It contains substantially the same description of the land sold and conveyed as appears in the deed from Hawkes to Martin.

We are of opinion that the interest of Martin in the land was subject to sale on execution, and that the plaintiff took thereunder all the land owned by Martin, subject to the rights of those who previously had purchased burial lots.

The contention of the defendants, that the deed from Hawkes to Martin conveyed no title to the fee in the land constituting the cemetery, is not tenable. We are of opinion that the deed of “all my interest in the unsold lots” followed by the recital “Said premises are bounded: Northeasterly and northwesterly by land formerly of Looney; southeasterly by land now or formerly of Wyman; and southwesterly by Cemetery Road and land now or formerly of Looney, or however said premises may be bounded,” conveyed the whole tract, subject to the rights of owners of lots to whom deeds had been given for burial purposes. The land comprising the cemetery could lawfully be sold or mortgaged. Garden Cemetery Corp. v. Baker, 218 Mass. 339, 342, 343. Sweetser v. Manning, 200 Mass. 378. Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 163, 166.

The master finds that the northerly part of the land “is well laid out in burial lots, well graded and covered with well wrought monuments and stones.”

These findings, and the findings that Hawkes had laid out a burial lot for the use of his family and had made numerous sales of burial lots to others, together with the language in the deed from Hawkes to Martin, are amply sufficient to prove a dedication to public use of the land as a burial ground. Commonwealth v. Viall, 2 Allen, 512. Davidson v. Reed, 111 Ill. 167.

The deed from Hawkes to Martin and the deed from the deputy sheriff to the plaintiff, in each of which the land is described as “locally known as Harbor View Cemetery,” were constructive notice to the plaintiff that it was a cemetery for the burial of the dead and was subject to all the rights incidental to such property.

The rights of owners in burial lots in cemeteries are well established; these rights ordinarily are in the nature of an easement; they do not convey an absolute right of property, but give the right of burial so long as the place continues to be used as a burial ground. It is a limited use for purposes of interment which gives no title to the land. A grant of a lot in a cemetery is said to be analogous to a grant of a pew in a church. Sohier v. Trinity Church, 109 Mass. 1. Feeley v. Andrews, 191 Mass. 313. Massachusetts Baptist Missionary Society v. Bowdoin Square Baptist Society, 212 Mass. 198. Garden Cemetery Corp. v. Baker, 218 Mass. 339. A certificate or deed to purchasers of lots in a cemetery conveys the privilege to make interments in the lots; it is not a grant of any interest in the soil, but is in the nature of an easement or irrevocable license so long as the place continues as a burial ground. Page v. Symonds, 63 N. H. 17. Windt v. German Reformed Church, 4 Sandf. Ch. 471. Dwenger v. Geary, 113 Ind. 106. Kincaid’s Appeal, 66 Penn. St. 411. Catholic Cathedral Church of Baltimore v. Manning, 72 Md. 116.

The master found that the three deeds or certificates were severally issued to the defendant Younger for a valuable consideration upon the dates therein written. They conveyed to him an easement or right of burial in the lots with all the privileges incident to such a conveyance. The plaintiff took no greater title under the deed to him than Martin, the judgment debtor, had at the time of the levy and sale.

It is not necessary that the deeds or certificates to Younger should be recorded as against the plaintiff or any other holder of the unsold lots. Feeley v. Andrews, 191 Mass. 313, 315. Davidson v. Reed, 111 Ill. 167, 169. Conger v. Treadway, 50 Hun, 451.

We cannot presume that the land was not used legally for the purposes of burial in the absence of evidence of permission by the town so to use it in accordance with the R. L. c. 78, § 30. No such defence is set up in the answer, nor was that contention made at the hearing before the master. Meagher v. Driscoll, 99 Mass. 281, 284.

Upon the findings of the master, the plaintiff took title to the real estate subject to the rights of lot owners including the rights of Younger. Younger, as the owner of the lots conveyed to him, was entitled to reasonable access thereto, and could grade and improve his lots and could remove material therefrom if reasonably necessary and proper for that purpose, but not otherwise.

For the reasons stated, we are of opinion that the decree must be reversed, and a decree entered enjoining the defendants from removing soil, gravel or other material from the lots owned by Younger unless such removal is reasonably necessary for purposes of burial or required in order properly to grade and improve them.

So ordered.