Boyce v. Kalbaugh , 47 Md. 334 ( 1877 )

Stewart, J.,

delivered the opinion of the Court.

Upon the final hearing of this case before the Circuit Court for Garrett County, as a Court of equity, a perpetual-injunction was granted prohibiting the defendants from excavating, building upon, or otherwise interfering with so much of the lot of ground, described in Exhibit A, as has been heretofore used as. a burial ground.

From'that decree.this appeal has been taken.

■ The proof in1 the record is abundant that the parcel of land in controversy included - in'the decree, had been used as a burial ground' by the inhabitants of the village of Bloomington, and no matter what may have been the prior rights of the appellant to the property, they must be held to have been waived, abandoned or subordinated to its public and . pious use as a depository of the dead, with the knowledge and acquiescence of the owner.

The notorious use of the property for upwards of twenty years, for such humane purpose as that to which it was appropriated with the acquiescence of the owner, affords presumptive evidence of its dedication as such; and the total inadequacy of any proceeding at law to give full redress for its disturbance, furnishes sufficient ground for the intervention of a Court of equity.

The complainants, who are relatives of the dead deposited therein, may invoke the remedial power of the Court, to prevent the desecration of the ground where repose the ashes of their kindred.

The material facts of this case, both as to the subject-matter and the competency of the complainants to maintain their suit, are analogous to the case of Beatty & Richie vs. Kurtz and others, decided by the Supreme Court of U. S., in 2 Peters, 566.

It was there held not to he a case for the redress of a mere private trespass: the property dedicated to public and pious uses threatened with deseoration — the sepulchres of the dead with violation — the sentiment of natural affection of the surviving kindred and friends of the deceased to be wounded, the memorials erected by piety and love removed, so as to leave no traces of the last home of their ancestors to those visiting the spot in future generations, were acts that could not be redressed by the ordinary process of law. The remedy must be sought in the protecting power of a Court of equity, operating by injunction to preserve the asylum of the dead and quiet the just and natural sensibilities of the living.

(Decided December 20th, 1877.)

The user is valid upon other principles than those which ordinarily apply between grantor and grantee.

It is supported as a dedication of the lot to public uses.

The case of Brown vs. Trustees of the M. E. Church of Baltimore City, 37 Md., 109, decided by this Court, is to the same effect, in the assertion that the remains of the dead are not to be disturbed, except upon most unequivocal grounds.

When the appellants, and those under whom they claim, have stood by and acquiesced, for such long period, in the user of lands devoted more especially to such sacred purpose as the burial of the dead, they cannot in good conscience and according to the principles of enlightened humanity, be permitted to defend themselves by the assertion of a stale legal claim; but they must be held to be effectually estopped from doing so.

Decree affirmed.