(dissenting) :
I realize that the preparation of dissenting opinions is generally a work of supererogation; and yet, when I am unable to agree with my associates, I think a proper regard for their opinions, as well as a decent respect for my own, affords sufficient excuse for the needless labor. The parties to a suit and their counsel are entitled to the several opinions of the judges, when there is want of concurrence.
While I have a very high regard for the opinions, generally, of my associates, and especially for the opinions of the judge who wrote the opinion in this case, because of his wide knowledge of the law and long service on this Court, still I am so thoroughly convinced that this decision is contrary to all the law applicable to the case, that I can not yield my own judgment, not even to so eminent a judge as he. Each judge arrives at his own conclusion, after a careful examination of the law, and it is, there*235fore, to be expected that all five of the judges will not at all •times agree; continuous harmony in the judgment of many judges is a certain evidence that some of them lack faith in their own opinions.
There is no controversy as to the facts in this ease; they are set out in a written agreement signed by opposing counsel. That the council met at night and; by resolution, closed the deal with Mr. Couch, is not material. There is not a particle of evidence of fraud. It is common knowledge that such meetings are as often held at night as in the daytime. Mr. Couch's good faith is shown by the fact that he had asked the council at other times to convert the lot into a park; and that he had, years before, submitted a written proposition to buy the lot and remove and re-inter the remains of the dead, on certain terms. There is no question of fraud before this Court.
I agree that the relatives of the dead have such an interest in their remains as will entitle them to resort to equity, if necessary, to prevent the unlawful disturbance of their graves; but I deny that any such case is here presented by the facts; there is no evidence that Mr. Couch.was interfering with the graves, or that he was about to do so. He would have been liable to criminal prosecution if he had done so. without first obtaining authority from the proper source. On the contrary, the agreed fact is, that the graveyard was in better condition when this suit was brought than it had been for twenty years before. Further than the right to have the graves of their relatives protected from unlawful molestation, the property right of each citizen of Charleston in the lot was the same; the right of one was not superior to another.
The principal question, in the case concerns the city’s power to control the use, and to make disposition, of the graveyard; other questions arising have more or less bearing upon this one, but they are only incidental to it.
I freely confess that,_ when this case was argued orally, more than a year ago, I received impressions which strongly inclined me to the view that the city had not the right, or power, to .dispose of its title to ground which it had bought for burial purposes, and-in which many bodies yet remained. It is a case that appeals strongly to one’s sentiment and feelings; and, when *236I began to examine the law bearing upon it, I did so with a prejudice against the right claimed by the city. But, as I proceeded in my investigation, I found my prejudice gradually yielding to the higher authority of reason and law, until at present I have not the faintest doubt in regard to the city’s right to sell the lot. But what use Mr. Couch can make of the lot, while the dead remain buried in it, is not for me to say; nor is that question presented to us. He may have a piece of property that is useless to him; but that is his own concern, and he is not complaining. Certain it is, that the criminal statute protects the graves against unlawful molestation, no matter whose land they are on.
The council of the city is given power under its charter to “purchase and hold or sell real estate and other property necessary to enable them the better to discharge their duties and needful for the good order, government and welfare of the said corporation; * * * to abate or cause to be abated anything which in the opinion of the council shall be a nuisance; * * * to provide in or near the city places for the burial of the dead, and to regulate interments in the city; * * * to promote the general welfare of the city and to protect the person and property of the citizens therein.” Is it possible that under such broad powers, the city can not dispose of its title to the lot in question, in the interest of the general welfare of the city, but is bound to keep it, regardless of its location, condition and its present surroundings, notwithstanding the council has long since provided a more beautiful and commodious cemetery, on the hill overlooking the city, sufficient to accommodate the remains of those who are now buried in the old graveyard as well as the bodies of those who may die in many years yet to come? I can not so believe. I think the charter powers of the city were intended by the legislature to meet the exigencies of just such a case as this.
No limitation is put upon the city’s right to dispose of the lot by the terms of the Daniel Rulfner deed. Then, whence the limitation? The opinion admits that the deed conveyed an estate in fee absolute. There is clearly no declaration of trust in the conveyance. Wherefore, then, deny the city the jus disponendi, a right incident to all estates held in fee ? The city *237paid $300' for the land, and Mr. Ruifner granted it in consideration thereof. It was, therefore, not a dedication by him. A grant for a valuable consideration, and without conditions, can not be a dedication; to say so is a contradiction in. terms. The recital that the city had purchased the ground for its use, as a graveyard, did not create a trust, nor did it oblige the town to devote it to that use; it had the right to make any other use of it that, in the judgment of the council, the city’s welfare might require. The recital is not even a covenant by the city that the land will be so used. It is no more than if a grantee of a lot of ground should say that he was buying it to erect on it a hotel. That would not estop him from building a dwelling house instead.
The opinion contains a very elaborate disquisition on the question of a dedication of land to a pious use. But I can not see that that question has any application whatever to this case. I think I have shown that Mr. Ruifner did not dedicate the ground in any sense of the term; and I think it is a use of the term, unwarranted in law, to say that the city dedicated it; the city simply used it for a particular purpose. But, let it be admitted that the city did, in a certain sense, dedicate the ground to a particular use; the question then arises, to whom did it dedicate it? The deed by which it took title answers that question; it says that it was “for the use of said Town as a Grave Yard, or place of interment, for the said Town.” Who constituted the town, now the city of Charleston? Its citizens. So that, the only dedication the town could, or did, make, was a dedication to itself. It was not authorized by its charter to buy land for any other uses than its own. If it held the property in trust, it held it in trust for itself, just as it holds any other land necessary for the performance of its governmental function. If it was, trustee, it was also cestui que trust; and the union of beneficial interest and legal title in the same individual, or corporate body, certainly confers the right of control — the jus disponendi. Deferentially speaking, I think the opinion presents a confusion of ideas, originating in the conception that the city is a trustee holding legal title for the benefit of its citizens in their individual capacity. But their property rights are not individual and distinct; they are only such as exist be*238cause of their citizenship in the organized society composing the municipality. A city can own no private property, all its property is held in public trust. It is created for governmental purposes; and is a subordinate political division of the state; it exists, owns property and exercises the powers and rights given by its franchise, for the benefit of all of its citizens. But, like other organized governments, it speaks the will of its citizens through their chosen representatives — the city council. Being chartered solely for a governmental purpose, a municipality can not make an irrevocable dedication of its property to a particular use; because to do so, would be to surrender its governmental authority, pro tanto.
Hone of the cases cited in the majority opinion, on the question of dedication, deal with the point presented by the facts of this case. They all relate to dedication of land by individuals, or by private corporations, to a public use. But even then, the authorities all hold that the use is subject to the governmental control of the municipality, but that, on the cessation of the use, the title to the land dedicated reverts to the former owner or his heirs. In the present case, the city, holding the absolute title in fee, would continue to hold it after the use to which the land had been put had ceased.
There was no grant by the city to any of its citizens for burial plots. The right of interment was a right in common to all the citizens of the city, and amounted only to a mere privilege, or license, revocable at the will of the municipal authorities.
“The right of burial in a public cemetery is not an absolute right of property, but a privilege or license to be enjoyed so long as the place continues to be used as a burial ground, subject to municipal regulation and control, and legally revocable whenever the public necessity requires .it.” Page v. Symonds, 63 N. H. 17. See also, Went v. M. P. Church, 87 N. Y. 266; Ex parte McCall, 68 S. C. 489; Richards v. Northeast Protestant Dutch Church, 32 Barb. 42; Price v. Methodist Church, 4 Ohio 515; Sohier v. Trinity Church, 109 Mass. 1.
The opinion admits that the legislature can authorize the city to dispose of the land, but I assert that it has already done so. The city bought it under the power conferred on it by the *239legislature, and the power given it to sell and convey is equally explicit.
A statute authorizing a municipality “to pass by-laws respecting the health, good government, and walfare of the place,” has been held to confer power to discontinue the use of a burial place in the city. 2 Dillon on Munic. Corp., sec. 682, and cases cited in note 1.
The power “to make regulations to secure the general health of the inhabitants and prevent and remove nuisances,” was held, in Campbell v. City of Kansas, 102 Mo. 326, a sufficient grant of police power to authorize the prohibition of burials and the discontinuance of a graveyard in the city; notwithstanding the city did not own the graveyard.
In People ex rel Oak Hill Cemetery Association v. Pratt et al., 129 N. Y. 68, it was held that the charter of the City of Rochester, which gave it power “to make, modify and repeal ordinances and by-laws to regulate the burial of the dead,” was sufficient to authorize the city to forbid the burial of the dead in lands of a cemetery association within the city limits, notwithstanding the city had previously given the right to the association to so use its land.
Presbyterian Church v. City of New York, 5 Cowen 538, is very much in point. The city of Yew York had there conveyed the lands to the church for a cemetery, and had covenanted for quiet enjoyment; and afterwards, pursuant to power given it by the legislature, passed a by-law prohibiting the use of the lands as a cemetery, and the church brought an action for an alleged breach of the covenant. The court held that the discontinuance of' the graveyard did not create a breach which entitled to damage, but was a repeal of the covenant for quiet enjoyment; also, that a municipal corporation could not, by contract, abridge its legislative power. There the city’s charter authorized it, to pass by-laws “for regulating, or if they find it necessary, preventing the interment of the dead within the said city.” That decision was later approved and followed in Coates v. Mayor, etc. of New York, 7 Cowen 585. In the latter case it was held, also, that the by-law need not recite on its face that it was necessary, but that the necessity was implied by the act of passing it; and that necessity meant “what is necessary for *240the public good.” The city there owned the land and granted it in trust for burial purposes, and it had been so used for more than a hundred years; but notwithstanding, the court held that it "was not conclusive against the power of the legislature, or the corporation, to pass the laws;” and that the city was not prevented from declaring the use “a public nuisance.”
In Kincaid’s Appeal, 66 Pa. 411, which seems to be a leading case on the subject, Judge Sharswood, on page 423, says: "We can not doubt that it is competent for the legislature to authorize or to delegate that power, (i. e. to discontinue a cemetery and to remove the remains of the dead,) to the municipalities. It is a police power necessary to the public health and comfort. As they can authorize the removal of any other thing which they deem a nuisance by a summary proceeding, without a jury trial, so they can authorize and direct the removal of dead bodies from any ground, and the consequent vacation of it as a burial ground.” In that case, however, there was a special act of the legislature of Pennsylvania, providing for the discontinuance of the burial ground, and the removal of the dead; so, also, there was a like special act by the West Virginia legislature in the case of Brown v. Caldwell, 23 W. Va. 188. But special acts in those cases were necessary for the reason that the cities did not own and control the respective properties. In the Pennsylvania case the land was owned by a church which had granted burial lots to individuals; and in the West Virginia ease the land had been granted to trustees upon a trust not for the city.
That the city passed no ordinance discontinuing the use of the graveyard, or declaring it to be a nuisance, can not affect the case. Such a resolution was not a condition precedent to its power to convey the land. Its use as a burial place had been practically discontinued; no one had been buried in th^ lot since 1872, and no care was taken of it. The deed to Couch, of itself, operated to discontinue the use, and a formal declaration of such discontinuance was not necessary. The city had provided a new burial place for its citizens, and thereafter bestowed no care upon the old graveyard; non-user and neglect by the city to care for it, for nearly thirty years, was certainly sufficient notice to the friends of the dead buried there that the city had ceased to maintain it as a cemetery. Many persons *241Rad already removed their dead to the new cemetery; and the city ought not to be required to maintain more cemeteries than are necessary for the purposes of interment. The resolution, passed at a regular session of the common council, accepting Mr. Couch’s proposition and instructing the mayor to execute to him a deed, was, in effect, a resolution discontinuing the use as a burial place. No previous notice of such a resolution was necessary, because no one had a right to prevent its passage; it was a governmental act, done in^ the exercise of a delegated legislative power. It is shown by the agreed facts, that since-the incorporation of the city no fewer than five different graveyards existed in the city at different times, all of which have-been discontinued. As the city grew and expanded, the little-burial ground became surrounded with elegant homes, and the council no doubt considered that the welfare of the people required that it be discontinued as a burial place; and the exercise of their governmental discretion in that regard is not subject to judicial review. The lot belonged to the city, and no previous action expressly discontinuing its use as a graveyard was necessary to enable it to convey it.
As cities grow in size and increase in population, it is a prevailing custom to discontinue old burial grounds, and to establish others in more desirable localities, remote from densely populated districts and away from the turmoil of business. The city is not required to justify its action in selling its own property; but if it were, it could no doubt do so on two grounds;-, first, that it had provided for its citizens another and a better-place for interment, to which they had a right to remove the-remains of their friends from the old graveyard, and had, therefore, performed its full duty in the premises; and second, that the old graveyard was so sadly neglected, and so much frequented for immoral purposes, that it had become a nuisance. The charter gives the council the right “to abate or cause to-be abated anything which, in the opinion of the council, shall be a nuisance.” Wood v. City of Hinton, 47 W. Va. 645; Baumgartner v. Hasty, 100 Ind. 575; Hart v. The Mayor, 3 Paige Ch. Rep. 213; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; 2 Dillon on Munic. Corp., see. 689.. But the power to declare a thing a nuisance, is given to enable the municipality to compel a private owner of property to change *242the use which he is making of it, when the use is an annoyance to the public. Such formal declaration is useless when the city owns and controls the property constituting the nuisance. But, it is insisted that a graveyard is not per se a nuisance. That may he true; still the council are authorized to declare a thing to be a nuisance, within reasonable limitations, which is not such per se; and, in such case, their action is not subject to judicial review; because it is the performance of a governmental function, for the promotion of the general welfare. 2 Dillon on Munic. Corp., sec. 689; and authorities above cited. Furthermore, a thing which is not a nuisance, under certain surrorthd-ings, may become such at a later time and under .different surroundings. A building which was not a nuisance when first erected may become such through its neglect and decay, or by the use made of it; so too, a graveyard located in the heart of a city, and surrounded by beautiful residences may, by simple neglect, become so overgrown with weeds, brush and briers, .and may be so used as to justify the municipal authorities in ■declaring it to be a public nuisance, even when the city is not the owner of the ground, not because it may endanger the health of the community, but because it affords a convenient retreat, nearby one of the public streets, for immoral purposes.
But, it is suggested that the city council had no right to neglect the ground and suffer it to become a nuisance. A complete answer to this argument is the fact that the city had provided another cemetery, and desired to discontinue the use •of the old one. It was not obliged to maintain more cemeteries than were needed. The relatives of the dead buried in the old graveyard had the privilege of removing their remains to the new cemetery; many of them did so; and thereafter no interments were made in the old one.
The municipal authorities, and the purchaser are charged with making commerce of the bones of the dead. But, is it not evident that the bodies interred there detracted from, rather than added to, the commercial value of the lot? Is a man forbidden to dispose of his land because he has permitted his neighbor to bury his dead in its soil? Certainly not. By permitting the citizens to bury their dead in the lot, the municipality did not dispose of any of its property rights, or relin*243quish any of its police powers to control its use. The citizens had only a permissive right, a mere license to occupy the ground •for the burial of their dead, until such time when the city might elect to make other use of it.
Would it not be more in accord with the sentiment, so eloquently spoken of in brief of counsel, if the friends of those who sleep in the old graveyard should wish their remains removed to the new cemetery overlooking the city, where their final abodes could receive respectful attention and care, rather than that they should be allowed to repose forever in a place so much neglected that it had become a rendezvous for crime ? If land, once devoted to burial purposes, could not thereafter be used for any other purpose, it would not be many centuries until the face of the earth would be wholly occupied by the dead, and there would be no place for the living. So, while it is true that the law does have tender regard for the sentiment of .the living for the dust of their dead, and protects their graves from unlawful desecration by punishment, as for a crime; still it acknowledges the earth as the only habitation for the living, and gives them a superior right to the soil.
I have shown, I think, that the right of interment was not a property right, but a mere license, or privilege, revocable at the will of the city.. That being so, it follows, as certainly as the night follows the day, that no one who has used the privilege has the right to refuse to remove the remains of his dead and thereby prevent the city from disposing of its property. The city did not bury the dead; wherefore, then, its obligation to remove the bodies, before being allowed to sell its ground? It permitted the burials, and it likewise permitted the removal of the dead, from the year 1872 down to the making of the deed to Couch, and four months thereafter, a period of more than twenty-five years. Was not that sufficient time for any one, who desired to do so, to remove and re-inter the remains of his relatives? It would certainly seem so. “Once a grave yard always a grave yard,” may be a prevailing sentiment, and it may have been also the law of Canaan in the days of patriarchal government, four thousand years ago; but it is certainly not the law of our land, or of our time. I would not willingly offend the sacred sentiment with which we all regard the dust *244of our dead; but, I ask, what means the language found in the burial rite of all Christian denominations, “earth to earth, dust to dust, ashes to ashes,” if the body is to be forever preserved ? And if it it is not to be forever preserved, why then should the spot of ground in which it rests be forever hallowed, and withheld from occupation; and, if not withheld forever, then how long? Thomas Campbell is just as eminent authority, in law, as our own beloved Whittier; and from him I quote the following :
“What's hallowed ground? Has earth a clod
Its maker meant not should be trod
By man, thei image of his God.
Erect and free,
Unscourged by Superstition’s rod
To bow the knee?"
The general public will have small interest in the graves, and in the monuments erected over the final resting place of most of us; and the surviving friends of those who die need no glittering shafts, or eloquent inscriptions, to remind them of their loved ones, for the tie of kinship endears the memory, and “to live in hearts we leave behind is not to die.” The embalmed bodies of Egyptian kings and nobles, buried three thousand years ago, are now exhibited in the museums of the country, as curios. If we could discover that lost art, would we practice it? I hope not. I rather think we are gradually losing our prejudices and finding our senses; and will realize, before many generations, that cremation, a much more sanitary method of disposing of the dead, can be made just as sacred a rite as burial.
The covenant by Daniel Ruffner and his heirs to stand seized of the lot “to the use of the said town of Charleston or the inhabitants thereof,” in the event the town should become incapable of holding the title, was made for the benefit of the municipality, and was intended to prevent a failure of title, in case the municipality should forfeit, or lose, its franchise. It does not affect the city’s title, or limit its power to make disposition of the lot. The covenant was made to meet a contingency which appears never to have arisen.
The fact that Daniel Ruffner excepted from the operation of his deed the plot of ground 35x45 feet within the bounds of the *245one acre lot, evinces no intention to create a trust relation between him and the city, hut rather shows a contrary intention; for, if he understood that the ground was always to be used as a graveyard, and could not be disposed of by the city, there would have been no occasion for him to reserve the legal title to that lot; he could have protected the graves of his parents and also provided a resting place for himself, by reserving the use only, of that lot. It was a matter of little concern who held the legal title, if the use was to be perpetual.
Law is not an exact science, but a thing of growth and development. Its aim is to do justice; but, as man himself is fallible, it follows that the institutions which he has established for the guide and government of society often fail to accomplish the end desired; but that is no reason why he should not continue his efforts to improve them. Men of the legal profession fully understand that the great body of our law is court-made; that is, it originated in judicial decisions which have come down to us through the centuries. The legislature has made only a fractional part of the law by which society is regulated, and under which its members transact business, one with another.' Therefore, when the courts of the present day undertake to interpret and apply what is known as the unwritten law to the facts in any given case, they should do it so as to meet the needs of the complex and highly organized society of the present, so far as this can be done with consistent respect for well established rights and principles. I am convinced that the Court, in reaching its conclusion in this case, has1 not only refused to be guided by the present needs of society, but has overridden the recent interpretations of the law, respecting such cases, made by the highest courts of every state in the Union that have spoken on the subject, and has taken a most wonderful backward stride; all of which I regret exceedingly.
I would reverse the decree and dismiss the bill.