Evening journal., 1916-08-05
DECISION
STOPS transfer
Of Library SITE
Judge Bradford Grants Pre-
liminary Injunction Re
straining Church Trustees
Legislative ACTION
MAY CLEAR SITUATION

Judge Edward G. Bradford handed
down an opinion in the United states
Court yesterday afternoon which will
stop the trustees Of First presbyter-
'an Church from turning over the old
burying ground at Tenth and Market
streets TO the Wilmington Institute
Free Library as a site for the pro-
posed new library at this time. in
this important decision Judge Brad
ford granted a preliminary injunction
restraining the trustees from enter
ing or in any way trespassing upon
the burial plot wherein the bodies OF
the relatives Of the complainants in
the case were buried
The decision Of Judge Bradford i3
an exhaustive treatise OF about $4,000
words In line with the judges rul-
'ng. although II is not a final dispose
tion OF the case. II seems that the only
relief for the library TO secure this
site must be by an act Of the Legisla-
ture to permit OF the conveyance
Other States. Il is understood, have al
law under which the vacation Of prop
critics under such conditions as this
can legally be brought about. but Del
aware has no such law. T. is liFely
that the next session OF the General
Assembly. which will meet IN Janu-
ary will be asked TO clear the way for
the transfer OF the property.
The next step in the case is hear
/ ing on its merits to determine
whether the preliminary injunction
shall be made permanent or whether
I the case shall be dismissed
The site. near Market and Tenth
streets was sold for S225 600 20 Arthur
L. Bailey for the library managers. and
IL was planned TO put up a 100000 Ii
brary building upon It.
Emily Cleland Townsand Chew. a citi
zen of New York State, and Sidney
Ethel Vincent and Archie y. Jordan
living in Massachusetts,. New Jersey ant
California. are the complainants, Will
the First Presbyterian Church and Ar.
thur l. Bailey, Of Wilmington, are tho
defendants.
Judge Bradford's opinion quotes nu-
/ merous decisions applicable to the case.
| At one point in his ruling he says that a
court Of. equity. az the instance Of proper
parties. "has the power to restrain the
! threatened wrongful destruction or re-
moval Of tombs, vaults. collins, human
remains or monuments in or from a
cemetery on wrongful injury thereto, or
to the burial premises
Friends or relatives Of the departed,
being or representing those who OBJ
tanned a deed or permit for a burial lot,
Judge Bradford asserts. are vested with
a right of which they cannot arbitrarily
be deprived. until that right lawfully
and bv proper authority is terminated
In another part of the decision, the
court declares;
THE fact that human remains re-
pose in the soil in numbers not safely
or lawfully 10 be exceeded affords no
justification or excuse for dismantling
and desecrating the resting place Of
the dead. removing or destroying the
memorials erected by affection or dis
regarding the pious or charitable use
and trust impressed upon the land
and the right Of owners or holders Of
burial lots or the relatives Of those
buried in the cemetery to have the
I same preserved in its integrity.
This suit does not proceed upon
any theory OF the expiration or ex-
AlniAAUAH AIAUMkM dNdlANNAAnfMA VI
otherwise, Of the pious and charitable
use and trust created by Stidham. but
on the contrary is brought to restrain
the violation thereof by the corpora
tion defendant acting in conjunction
with Bailey"
: Judge Bradford points out that in
: this case no attempt had been made
10 invoke the right OF eminent domain
or the police power for the pro-
: lection Of public health. and that
there is not now any statutory pro-
vision for the termination OF the trust
or use I'm question or for the convey
ance OF the land free and discharged
thereform. The court also says:
, ASIDE from the attempted sale and
conveyance 10 Bailey for the purpose
, Of a public library there has been ne
abandonment by the corporation de-
fendant or any attempt by II to aban-
don the pious or charitable use OF
! trust under the deed Of Stidham with
respect to the whole or any part OF
the land In the cemetery"
Inaccurate and Unsound.
Language has been employed ir
. Continued on Page SKI