Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-05-01
A GRAVEYARD SUIT.
AN INTERESTING DECISION.
Case where Purchaser Of Land Had Fss
Hos.Pen ON . Family Bsrisi.6round--
AlInUsd.

Case Where q Pure kaser OF b3nn n@e ~
Hoe.Pes ON . Family Buriai.tsrouud-
Damages Allowed.
The only case decided by the Su-
preme Court Oh yesterday will be OF
much public interest, especially so to
the country people throughout the State,
for with them the old family graveyard
is an institution, a familiar object to be
seen on almost every farm in Virginia.
This case was as follows:
In August, 1872, Benjamin I. Benn
came to Virginia from the State Of
Michigan and purchased in the county
of Goochland a farm of 275 acres oil
land. There was on it at the time he
purchased graveyard of three quarters
of an acre in extent, situated just IN
front Of his house, and, though unin-
closed, was yet distinctly and visibiy
marked as such by the growth Of cedars,
locusts, and similar native woods; by
periwinkle covering the ground, and BY
head and foot-stones to the graves, and
in one instance by brick wall enclosing
one of the graves.
After acquiring possession he deter
mined, it seems, to destroy ito wipe
it out and accordingly he cut the
trees down, had them grubbed up by
the roots-as likewise the bushes and
undergrowth p; he moved the stones, re-
moved the bricks completely from
around the walled grave IA corner or
portion Of which, it is true, had been
knocked down by the falling Of tree
in . storm), converted the spot into a
hog-pen, and then afterwards had it
ploughed and planted in crops. And af-
terwards refused to permit the inter-
ment there OF a member of the family,
whose body was carried there for that
purpose from this city; even threaten
ing to shoot anybody that would at
tempt to dig grave there.
In August, 1851, Ann Hatcher, the
widow, and nine others, the children
and devisees Of Josiah Hatcher, de-
ceased, sold and conveyed this farm to
Mr.. John T. Sublett, Of this city, in
the deed resercing TO the parties Of
the first part three fourths Of an acre as
a barying-ground for The family and
their deScendants."
In 1852 John T. Sublett sold and
conveyed the farm to David A. and
Frank j. Hatcher, two Of the nine de-
visees who had conveyed to him, with
a similar reservation Of the graveyard.
Through them, after several aliena-
tions, bm all Uithom any reservation o
the graveyard, the farm came to the
hands Of Benn.
In 1882, soon after Benn's refusal of
the interment Of the body there, an ac-
tion Of ejectment was instituted against
him for the recovery Of the graveyard
and for damages for the waste and de-
struction committed by him by the de-
visees Of Josiah Hatcher. This was
tried and a verdict in their favor rem
dered for the premises and $500 dam
ages at the April term Of the Circuit
Court, 1883, (Judge Wexford, OF this
city, sitting specially to try the case).
From this decision Benn took an appeal.
The Supreme Court, in an opinion
delivered by Lewis, president, Fauntle-
roy j., dissenting, affirmed the decision
of the lower court.
TITLE.
1t sustained the title of the IIatchers
to the graveyard on two grounds
First, that there had been an appropria-
tion--a dedicdfion--of this particular
spot az a burying-groupd long before
Mr.. Josiah Hatcher's death, and that
while dedication, in its technical,
legal sense, is the appropriation oi
land to some public purpose, such
as a highway or a common, yet
it is efectual, it seems, when it Is
an appropriation to some pious OF
Christian use. at is not necessary
that it should be by deed or in writing.
1t may be by act in pals nor is il
necessary that the fee should pass, for
dedication has respect to the possession
merely. And where property is thus
set apart an estoppel arises which pre-
cludes the owner from reyoking the
dedication for the law considers that
it would be in violation of good faith,
and in some instances even sacreligeous
to reclaim at pleasure property which
has been devoted to the use Of the pub
lie or in furtherance of some charitable
or pious object" Beatty rs. Kurtz
Pet, 5GG; Cincinnati rs. Whites
lessee, ID, 43l; Hunter rs. Trustee.
of Sandy Hill, Hill, 407 3 Wash
on Real Prop, 4j9.
And in the second place, the opinion
goes on to show that this case "stands
on even higher ground. II stand, Oh
the solemn agreement Of the parties
themselves that the lot IN question SHOULD
not only be ercepted out Of the deed Il
Sa6lett, 6m that ii should be derOfed ia
the future. as ii had been an the past, Il
the use Of the family as a place Of bu
rial for its dead. And the appropria
ton thus made was not for the separate
use of the individuals composing the
family at the time, but for the family
as a whole and their descendants, ant
could not be relinquished or assigned
in whole or in part, except by the con.
current act of all for whose benefit il
was intended. 1t follows therefore
that no title to the premises in contro
versy was acquired by any of the con
veyances subsequent to the deed tC
Sublett.'
| DAMAGES.
The court fixes the measure OF dam
ages in the case TO what it would cos
to restore the premises to the condi
ton in which they were before the de
struction. In this form of action
was an ejectment suit-the idea o
punitire damages would not be allow
ed, whatsoever might be proper in AM
other form Of action. 1t sustained tht
instruction given by the lower court
and under the evidence as certified
and which was not contradictory, i
could not say that the damages wer,
excessive.
Messrs. b. II. Nash and Jackson
n IL