The inexplicable desire of men, to possess things regardless of their title and practical utility has led to various phases of novel litigation, furnishing unique legal situations, such as the extraordinary scene in the regal court of Solomon, concerning the ownership of a child, and the abnormal craving of the money changer, in the ducal court of Venice, whose *Page 308 sole claim to judgment rested in the abnormal satisfaction of possession, as evidenced thus —
"You'll ask me why I rather chose to have A weight of carrion flesh than to receive Three thousand ducats? I'll not answer that, But say it is my humour."
In like manner the events herein recorded naturally suggest the inquiry why an ancient cemetery coeval with the colonization of the county should devolve under a claim of title into the hands of a jovial disciple of Justinian, who, unlike Gray in his eloquent elegy, entertained no sentimental attachment for the place, and unlike its lowly and silent occupants was not likely to make it his final habitat:
About the period when the advent of the Pilgrims made Plymouth rock famous, another band of Pilgrims from the Netherlands settled the island of New Amsterdam. Among them was Lorenz VanBoskerck, who, with a few followers, crossed Hudson's river and settled at Constable's Hoeck, adjoining Paulus Hoeck, which eventually was to develop into the present city of Bayonne, upon the banks of the Kill Von Kull.
A necessary adjunct to the bouerie or farm of those days was a cemetery, many of which still linger, to remind us of the custom wherein were interred not only the immediate family of the patroon or settler, but also his relatives, servants and neighbors, so that the plot in the course of time served as a community graveyard. Thus it happened that the plot in question contained a gravestone inscribed in 1732 to the memory of Peter VanBuskirk, and at the time of the transfer of the cemetery to its juridical grantee contained between two and three hundred promiscuous graves, besides headstones and a family vault, indicating its general use as a community cemetery. To emphasize this use, as it were, the plot was generally designated in the public records and popularly as "the old cemetery," its use as such manifestly extending into the colonial past, for a period at least of one hundred and fifty years. *Page 309
So careful were the descendants of the early burghers to preserve the sanctity of its character that James VanBuskirk, in 1823, in his last will, devising all his real estate to his three sons, specifically excepted from the devise "the burying ground as it is now enclosed." So, also, John, one of the devisees, in executing a conveyance in 1864 to his son, John, Jr., made a similar reservation; and thereafter, in the same year when he executed his last will, in devising the family homestead to the same son, he provided:
"It is my wish and I hereby order that the burial ground at Constable Hook, adjoining said homestead, shall not be disturbed in any manner, nor used for any purpose whatever, except for sepulchre only."
And so, through the various generations of the VanBuskirk family, we have an effectual dedication of the plot first by actual practical location and continuous use, and secondly by testament and grant, thus effectuating the donor's intent in an indubitable legal manner, and the validity and indistructibility of the concession for any other than the use thus effectuated.Trustees of Methodist Church v. Hoboken, 33 N.J. Law 13.
In 1905, however, the commercial impetus of the times was sufficiently potent to induce John, Jr., to attempt a conveyance of this sanctified plot to Colonel Charles W. Fuller, a legal representative of the defendant company, by the following description, which left no doubt that the grantee at least was fully informed of the dedicated character of the locus in quo,i.e., "the land used and employed for the purpose of sepulchre, and known as `Old Cemetery,' containing one acre of land be the same more or less."
The colonel lost no time in dismantling the cemetery, for by arrangement with his grantor some of the immediate VanBuskirk relatives were removed to the Moravian Cemetery, at Staten Island, but many of the remains were undisturbed and still repose in the ancient plot. The rustic fence, the head stones, and the ancient vaults were removed, and when some of the complainants, shortly before the hearing, *Page 310 visited the plot, the only discernible evidence which remained of "God's acre" consisted of some stray bones which apparently in the hurried work of exhumation had been lost or overlooked.
But the colonel did more — for, realizing that the vacation of the streets and roads leading to the plot would be necessary for the practical use of the locus in quo, as a commercial asset, the governing body of the municipality was induced to pass the necessary legislation to that effect, and the public entrances and exits to and from the cemetery were thus obliterated.
The graves of the unexhumed dead presumably still remain intact, but no method apparently has been provided for their identification, so that their graves, like that of Moses upon Mount Nebo, "no man knows to this day." To obtain access to the plot permission must be obtained from the defendant, since the rustic fence is now replaced by a high wall, enclosing huge circular oil tanks, standing like grim sentinels of the new order, overlooking and guarding the discarded relics of the old; and thus —
"Glory guards with solemn round The bivouac of the dead."
In this work, it is suggested that Colonel Fuller did not represent the defendant. Perhaps not; and yet, in the final analysis, it is a matter of no consequence, since defendant's title is based upon this legally abnormal procedure, and can rise no higher in legal validity than the source from which it emanates. He who writes these lines, in common with other members of the court, knew the colonel. Like Yorick, "a fellow of infinite jest and most excellent fancy." Debonair to a marked degree, and possessed of that rare attribute of human fellowship which the proverbial Celt happily terms "the milk of human kindness." A veteran of the military service, possessing the carriage and poise of a gallant moustache of the revolution, combined with the abandon of a gay boulevardier; a keen observer of humanity, as well as of law and legislation, he, like Cassius, was able to look "quite *Page 311 through the deeds of men;" learned in the law, as well as in the progress of political science, he became with the years invaluable to any great business interest with which he might be identified, and withal and because of those amiable qualifications and characteristics, he would be the last man among the brethren whom one would select to perform the sad offices of a mortuarian, or to assume the morbid status of landlord of a cemetery.
The complainants, heirs of the old family, desire to enter the plot without defendant's permission, and to that end seek by their bill in chancery to set aside and annul the conveyance to the colonel, upon the legal theory that since its dedication was effectuated, it is no longer in the hands of the living, but like an ancient sanctuary, remains in mortmain. The learned vice-chancellor so adjudged, vividly holding against the defendant's charge of adverse possession and abandonment, that "the dead hold adversely to the living," and that the cemetery therefore was incapable of disposal by grant.
One marvels why, when streets and highways were legally vacated, the same legal modus operandi was not applied to the vacating of the cemetery plot, in the name of the municipality, as prosecutor pro bono publico, instead of adopting the private method of trade and barter, exhibited by the record. No question can be made that in virtue of a public demand for public reasons this cemetery might be condemned and vacated under public auspices, but the doctrine is entirely novel that a dedicated cemetery in practical use by the public, may be sold at private sale, as other real estate, for private commercial uses, and the cemetery in that manner vacated, and its silent occupants thus remitted to the cold charity and unsentimental mercy of the trader.
The adjudications cited by learned counsel to sustain this novel contention are all to the effect that for the public interest, and in the name of the public, a cemetery may be vacated under prescribed legislative provisions, and police protection, but no case is cited going the length required to support the situation presented here. The case of Newark *Page 312 v. Stockton, in this court, 44 N.J. Eq. 179, lends no support to the procedure herein adopted. Per contra, the learned Chief-Justice Beasley, with that conspicuous acumen which dominated all his pronouncements, emphasizes the distinction existing between a public and a private prosecutor in this class of cases, and observes as dispositive of that case, "the supervening and single question is whether such use [cemetery] can be abrogated by legislative action, and the lands appropriated to other public purposes."
Since that period (1887), statutes have been enacted authorizing such public action for public uses; but no statute is cited which allows or sanctions the unique procedure here adopted; and decisions of the courts in various jurisdictions may be cited, supporting the public as distinguished from the private right to such condemnation and change of public use.
Learned counsel for the defense, however, evidently sensed this difficulty, and perceiving the legal impasse, assumes the broad and liberal contention as the basis and rationale of his claim that "in regard to the abandonment of cemeteries generally, there has been a complete change in recent years in the opinions of the courts of this country, due primarily to the change in our economic and social life." While we must concede the correctness of this contention as applied to the public right, upon the basic principle salus populi suprema est lex, yet, manifestly, such a contention has no relevancy or application to the case of a private demand for private uses. Startlingly novel, however, is its invocation in this instance, by a prominant industrial corporation, since upon its economic correctness is based the substance of the philosophy of Karl Marx, and his disciples of the modern school of socialistic thought, i.e., that the religious, legal, political, social and mercantile institutions of mankind are the result of and are regulated and controlled by the economic changes or determination of history, and not by any prehistoric dispensations of an omnipotent and omniscient Deity. Advocates of almost every religious denomination have inveighed against the correctness of this philosophic teaching, while *Page 313 modern business and social life have to a marked degree supported the opposition of the clergy. To have this philosophy now urged upon the court, as the basis of a mercantile claim by one of the largest and most progressive business enterprises of modern history, is at least a serious concession to the doctrine underlying all economic radical thought, but like a leap in the dark it was probably injected into the controversy as argumentumab inconvenienti, without realizing the magnitude of its portent.
The inquiry is finally urged, what use can a small cemetery serve, situated as is this, in the midst of a vast industrial development, environed by towering oil tanks, casting their secretive shadows upon the lonely buried dead, like historic pyramids reared upon the shifting sands of dead and forgotten empires.
In this material age, when the spiritual and ethical elements of mankind become negligible in the insatiable mania for the inordinate accumulation of wealth, such an inquiry is not inappropos and one may indeed pardonably ask cui bono? It may be a sufficient though sentimental answer to suggest that the founders of the community, the colonial dead who stood at the cradle of the infant state, and ministered to its distressful needs, there repose in studied neglect, and guarded obscurity, when willing hands and grateful hearts might rear a fitting testimonial to their memory.
But there is another answer, and to those who are not entirely "of the earth earthy," it furnishes a satisfactory solution to the inquiry. To those who, rising above the mercenary spirit of the age, extend their vision beyond the stars; who visualize a world which saw its genesis in a march of material evolution that progresses indefinitely to a spiritual consummation, comprehending the ideal, the harmonious and the perfect; who yearn —
"For the touch of a vanished hand, And the sound of a voice that is still."
who in the midst of the noisy turmoil, and nerve-wrecking excitement of the busy city, seek momentary pause, peaceful *Page 314 introspection and rest for the weary soul, in the placid environment of "God's acre," there find also a consoling medium which reaches the harmonies of the eternal.
Like a solitary beacon extending its welcome light in the midst of a troublous sea, like a restful oasis in the midst of a scorching desert, like an inviting hospice in the midst of Alpine snow and ice, such a refuge holds for the worn and weary, for the heart bowed down, a consoling atmosphere of repose, consolation and hope, where high and low, rich and poor, the pampered and the outcast may within its placid portals linger, to revive a loving memory, to indulge an ardent hope, and amidst its solace and peace recall with satisfaction the graphic and eternal thought of Edmund Burke, on the grave of his son,
"What shadows we are, and what shadows we pursue."
The decree of the learned vice-chancellor should be affirmed.
I am advised that Justices Kalisch and Black and Judge VanBuskirk concur in these views.
For affirmance — MINTURN, KALISCH, BLACK, VAN BUSKIRK, JJ. 4
For reversal — THE CHIEF-JUSTICE, KATZENBACH, CAMPBELL, WHITE, McGLENNON, HETFIELD, JJ. 6. *Page 315