1. The overruling of an objection to the admission of testimony on the ground that it is "incompetent and immaterial" is not reversible error.
2. Where an objection of a general nature is urged to the admission of testimony, and the court admits it for a limited purpose, and the objecting party makes no further objection thereto, no valid assignment of error can be based on the court's act in admitting the evidence.
3. The court did not err in admitting the testimony referred to in the corresponding division of the opinion.
4. An immaterial and unprejudicial misstatement of a party's contentions in the court's charge to the jury will not require a new trial.
5. An assignment of error based upon a particular excerpt from the charge of the court, complaining because therein the court omitted certain contentions of the complaining party, shows no ground for reversal, where the charge as a whole fairly states the contentions of the parties and further instructs the jury that the pleadings will be out with them, and that the jury can refer thereto in order to ascertain the contentions of the parties.
6. Instructions to the jury which are not authorized by the pleadings or the evidence, and which are harmful to the complaining party, require the grant of a new trial. But where evidence which could have been rejected as not conforming to the allegations as laid, is admitted without objection, and relates to the cause of action declared on, it is not error for the trial court to charge the jury with reference thereto.
7. In view of the allegations of the defendant's answer, the charge complained of in grounds 15 and 16 of the amended motion for a new trial was not error.
8. Grounds of the motion for a new trial not specifically dealt with are without merit.
9. Where land is expressly dedicated for cemetery purposes by one exercising possession thereof at the time of the dedication — even though the evidence fails to show in whom legal title to the property was vested at that time — and there has been open and notorious use of such property by the public as a cemetery for fifty years and the location of several hundred graves thereon, and where a subsequent owner of the fee of the surrounding property makes no objection to such use for a period of approximately twenty-eight years, an implied dedication by *Page 669 such owner will be conclusively presumed, and he cannot appropriate it to his own use, or interfere with the use thereof by the public for cemetery purposes. The evidence demanded a verdict for the plaintiffs, and the trial court did not err in overruling the motion for a new trial.
No. 16644. JULY 12, 1949. REHEARING DENIED JULY 27, 1949. Alvin Watson, John Daniel, Jake Alexander, and C. D. Haslerig brought a suit for injunction in the Superior Court of Walker County, Georgia, against A. L. Haslerig of said State and county, reciting that they "bring this suit for themselves and all other colored people who have heretofore buried their dead in District Hill Cemetery, the location of which is hereafter described, or who may hereafter desire to bury their dead therein."
It is alleged: that for more than fifty years prior to the acts on the part of the defendant complained of, Gordon Lee and Tom W. Lee were the owners of all of lot of land No. 318 in the 9th District and 4th Section of Walker County which lies on the east side of Cove Road, and also more than fifty years prior to the acts of the defendant complained of said Gordon Lee and Tom W. Lee dedicated to the public to be used as a burying ground or cemetery by colored people a tract of land comprising approximately one acre, which tract was fully measured, staked out, and marked by stones at the corners, in that part of said lot No. 318 on the east side of said Cove Road in said district and section, this cemetery being located some five hundred yards east of the Cove Road; and that there was also dedicated by the parties named a right-of-way or road leading from said Cove Road to said cemetery, so that vehicles could be driven from said Cove Road to and into said cemetery for the purpose of burying the dead and visiting and attending the graves in said cemetery.
It is further alleged: that said dedication of the cemetery and road was verbal and was made by the said Gordon Lee and Tom W. Lee, and it was immediately accepted and the public began the use of said cemetery by burying their dead therein promptly upon the dedication thereof; that said cemetery and roadway have been continuously used by the public since said dedication, and there are now between seven hundred and one *Page 670 thousand graves therein; that the use thereof was interfered with and interrupted by the defendant beginning about March 1, 1946, prior to which time large numbers of funerals had been conducted in said cemetery, and the same has been constantly in use since the dedication.
It is also alleged: That, subsequently to the dedication of said property and the acceptance thereof, the dedicators conveyed the property surrounding said cemetery and right-of-way to Clark Lee Nunnally on July 15, 1903, and thereafter the property was conveyed to G. L. Bonds on November 2, 1911; and that on November 22, 1915, G. L. Bonds conveyed the property surrounding the cemetery and roadway to G. W. Haslerig, and on November 7, 1918, G. W. Haslerig conveyed it to his three sons C. D., A. L., and S. S. Haslerig. Thereafter, these three brothers divided the tract of land among themselves, had the same surveyed, and in this way A. L. Haslerig acquired possession of the portion of the tract surrounding the cemetery and roadway, which occurred several years prior to the acts of the defendant complained of and several years prior to the filing of this suit.
The petition further alleges: That early in 1946 A. L. Haslerig circulated a statement among members of the public, including the petitioners, who were interested in said cemetery and had relatives buried there, which statement claimed heavy damages had been done to said cemetery and the graves and tombstones therein by a power company whose electric lines had been extended across a part of said cemetery, and urged these members of the public who were interested in said cemetery to join him in a damage suit against the power company. When the petitioners investigated, however, they found that no damage had been done to the cemetery, graves, or tombstones, and accordingly they declined to take any part in the suit for damages. The defendant became so disgruntled because the petitioners and other members of the public refused to become parties in the litigation sponsored by him that he announced he would close the cemetery, that the same belonged to him, being surrounded by his property, and that he would permit no more burials therein. The defendant thereupon ordered all members of the public to stay off the property, and he refused to permit several *Page 671 funerals in said cemetery where relatives of the deceased were already buried, and refused to permit any members of the public to bury their dead therein. On one occasion early in 1946 certain members of the public, including C. D. Haslerig, brother of the defendant, entered on said cemetery property and conducted a funeral therein, notwithstanding the threats of the defendant. Immediately thereafter the defendant procured criminal warrants to be issued for the parties taking part in said funeral, except C. D. Haslerig, his brother, and several parties were arrested by virtue of said criminal warrants and taken before a justice of the peace who conducted preliminary trials, dismissed said warrants, and required the prosecutor to pay the accrued costs. The defendant then proceeded to obstruct the roadway leading from Cove Road to said cemetery by placing large logs and rubbish across said roadway, and is preparing to erect a fence so as to make said cemetery a part of his pasture; and he refused to permit the petitioners and other members of the public to erect a fence around said cemetery so that the defendant's cattle could not trample on the graves.
The petition alleges further: that, by reason of the dedication of said property for cemetery purposes and the right-of-way thereto, the acceptance thereof, and continuous use of the same over the period of time stated, the petitioners and all other members of the public have a right to use the property for the purposes for which it was dedicated; that the defendant acquired possession of the property surrounding said cemetery and right-of-way long after it had been dedicated and accepted, and years after it had been continuously used for the purposes for which it was dedicated; and that the defendant had full knowledge thereof.
The petition also alleges: that the defendant has no legal right to interfere with the use of said cemetery and right-of-way, and has no legal right to obstruct said roadway or to cut off any part of the cemetery with a fence; that the petitioners have no adequate remedy at law; that unless they obtain equitable relief, irreparable harm and damages will result from the acts of the defendant; and that the petitioners and other members of the public, by being excluded from said cemetery and prevented from burying their dead and visiting the graves and caring *Page 672 for the same, will have their rights therein utterly destroyed by the defendant.
Prayers of the petition were: (a) for process; (b) that the defendant be temporarily and permanently enjoined and restrained from interfering with the use of said cemetery; (c) that the defendant be temporarily and permanently enjoined and restrained from erecting any fence or fences in said cemetery and from obstructing the roadway leading thereto from said Cove Road; (d) that the defendant be required by order of court to remove obstructions already placed in said roadway and cemetery within a period of five days from the day the order is served; (e) that the petitioners have and recover against the defendant the costs of this proceeding for the use and benefit of the officers of the court; (f) that the court by proper order require the defendant to show cause before the court, if any he has or can, why the temporary order should not be made permanent; and (g) that the petitioners have such other or further relief in the premises as they may be entitled to.
The defendant, A. L. Haslerig, filed an amendment to his answer, in which he had originally admitted the allegations of the petition as to the ownership of the property involved being in Gordon Lee and Tom W. Lee, by striking the names of these two and inserting in lieu thereof, "The heirs of James Lee"; and by denying the material allegations of the petition, and setting up that any use of the land or of said roadway was permissive only, and that the ownership, together with the right and power to exercise all rights of ownership and control thereof were retained in the owner, and that this defendant and his predecessors in title have at all times exercised every right of ownership, possession, and control of the same, and that neither the petitioners nor the general public have ever done anything whatever toward the repair or upkeep of the road leading from the Cove Road to said cemetery. The defendant specifically denies that there was any dedication of the cemetery or road, and alleges that any and all use of the same has been permissive only. He admits that the various conveyances referred to in paragraph four of the petition were made; but alleges that in none of them was there any exception as to said burying ground or cemetery or as to the right-of-way, but that fee-simple title was conveyed *Page 673 in and to all of said property, and that this defendant has been in open, notorious, adverse, and peaceful possession of said lands and said roadway, claiming the same under right for approximately twenty-five years.
Further answering the defendant says that he did have certain warrants issued for certain persons who came upon his land and were digging a grave for the purpose of burying a body thereon and that they were carried before a justice of the peace for hearing, and that the warrants were dismissed. He alleges further that he did put one log across his farm road leading to the burying ground, but that every other obstruction of any kind or character on said roadway was the result of work done by the Georgia Power Company; and that he permitted the same to remain thereon for the reason that there was pending in the superior court an appeal from the award of the arbitrators and proceedings to condemn a right-of-way and easement over his lands by the said Georgia Power Company, and he desired the premises to remain in the same condition in which they were left by the power company until the trial of the case, so that, if the court permitted, the jury might view the premises and see for themselves the condition in which it was left. He alleges further that at the time the warrants were issued he remonstrated with the persons digging the grave and offered to pay for a grave at any other place that they might select for the body to be buried until after the final determination of the case with the power company, and that he would then pay all of the expenses of the removal of the body to the burying grounds located on his land, but they refused so to do and stated that they would bury the body on the defendant's land whether he liked it or not, and then the defendant had said warrants issued. The answer further denies any right to an injunction on the part of the plaintiffs in the case, and that he had done any of the acts alleged for which an injunction might be issued.
The jury returned a verdict for the petitioners, and the exception here is to the judgment overruling the amended motion for new trial. 1. The *Page 674 first ground of the amended motion assigns error upon the admission of certain testimony therein set out, this ground showing the evidence offered, the objections made, the colloquy between the court and counsel, and that one of the objections urged was sustained. The only objection overruled was that the evidence objected to was "incompetent and immaterial." The overruling of such an objection is not reversible error. Hogan v. Hogan, 196 Ga. 822 (28 S.E.2d 74); Manley v. Combs,197 Ga. 768 (9) (30 S.E.2d 485); Pippin v. State,205 Ga. 316 (53 S.E.2d 482).
2. The 4th and 5th grounds of the amended motion complain of the admission of certain testimony therein set out, with reference to the conduct of the defendant in connection with tearing down or injuring a fence around the cemetery, which occurred after the filing of the petition and the answer thereto, the objection being that evidence was not admissible as to any acts of the defendant committed since the suit was filed. The court overruled the objection and admitted the testimony only on the question of interest and conduct of the parties. As thus limited, the admission of the testimony was not erroneous, no further objection being made thereto. Mickle v. Moore,193 Ga. 150 (17 S.E.2d 728).
3. The 2nd and 6th grounds of the amended motion complain of the admission of the testimony of witnesses therein referred to, with reference to the taking out of certain criminal warrants by the defendant against persons who were engaged in the digging of a grave on the premises in dispute, and as to how many warrants there were, as to their being dismissed, and as to who was required to pay the cost thereof. The admission of this testimony was not error for any reason assigned, in view of the allegations of paragraph 6 of the petition, wherein it was alleged: "On one occasion early in the year 1946 certain members of the public, including C. D. Haslerig, brother of the defendant, entered on said cemetery property and conducted a funeral therein, notwithstanding the threats of the defendant. Immediately thereafter the defendant procured criminal warrants to be issued for the parties taking part in said funeral, except C. D. Haslerig, his brother, and several parties were arrested by virtue of said criminal warrants and taken before *Page 675 a justice of the peace, who conducted preliminary trials and dismissed said warrants and required the prosecutor to pay the accrued costs," and the answer of the defendant thereto, that "this defendant shows that he did have certain warrants issued for certain persons who came upon his land and were digging a grave for the purpose of burying a body thereon, and that when the same was tried before a justice of the peace said warrants were dismissed."
4. In the seventh ground of the amended motion error is assigned upon an excerpt from the charge of the court therein set out, wherein the judge was instructing the jury as to the contentions of the plaintiffs, on the ground that the charge as given did not accurately state their contentions, in that the petition alleged that the property involved was described as "a tract of land comprising approximately one acre, which said tract was fully measured, staked out and marked by stones at the corners," while in the charge excepted to the court instructed the jury that the plaintiffs contended that "approximately an acre was marked off or stepped off and staked off and that certain reasonable lines were pointed out to them by the dedicators." This was not such a material variance as would render the charge given erroneous. To state that the corners of the tract of land were alleged to be marked by "stakes" instead of by "stones" would not be such a material variance as to be prejudicial. Wadley Southern Railway Co. v. Kennedy,136 Ga. 440 (1) (71 S.E. 740). The real question here involved was whether there was such a reasonable description shown in such manner as that the metes and bounds of the land could be identified. Brown v. Gunn, 75 Ga. 441. Whether the corners were marked by "stakes" or "stones" would not be vitally material.
5. The 8th ground of the amended motion assigns error upon the excerpt from the charge of the court therein set out, wherein the judge was instructing the jury as to certain contentions of the defendant, it being insisted that this charge was error for the reason that it did not fully state all of the contentions of the defendant. The excerpt there set out does not contain the entire charge as to the contentions of the defendant, and when considered in connection with the charge as a whole, the excerpt complained of is not subject to the criticism made. The court *Page 676 elsewhere in the charge stated in much greater detail the contentions of the defendant, and further instructed the jury: "You will have these pleadings out in your jury room with you and you may read the pleadings, that is, the petition of the plaintiffs and the answer of the defendant, as you see fit, and in that way see for yourselves just what the plaintiffs do contend and what the defendant contends, and in that way keep clearly in your mind the issues between the parties in this case." Any failure on the part of the trial judge to state in the particular excerpt complained of all the contentions of the defendant was cured by his subsequent instruction that the contentions of the parties were set out in the pleadings, and that the jury could look to the pleadings for their contentions.Varn v. Bloodworth, 157 Ga. 300, 307 (121 S.E. 380);Hogan v. Hogan, 190 Ga. 555 (9 S.E.2d 891).
6. In the 9th ground of the amended motion, error is assigned on the following excerpt from the charge of the court: "You look to the evidence in this case, gentlemen, and see what the evidence shows; and see if you can determine that question, as to who the owner of all of this tract of land at that time was; if Mr. Gordon Lee and his brother, Tom W. Lee, were the owners of the tract of land, then they did have the right to dedicate any part of it to the public for the cemetery purposes and a highway, a roadway, leading from the highway up to the cemetery lot." This charge is alleged to be error because there was not sufficient evidence on which to base it, in that the evidence failed to show that Gordon Lee and Tom W. Lee were the owners of the tract of land at the time of the alleged dedication thereof.
In the 10th, 11th, 12th, 13th, 14th, 17th, and 19th grounds of the amended motion error is assigned on certain excerpts from the charge therein set out, some of the grounds referring to the same excerpts, and some to different parts of some of the excerpts complained of. In each of these grounds the charges therein excepted to are alleged to be erroneous for the reason that they submitted to the jury theories upon which the plaintiffs would be entitled to recover not alleged in the petition and not supported by the evidence. By the charges thus excepted to the court authorized the jury to return a verdict in favor of the plaintiffs upon the theory of an implied dedication by Tom W. *Page 677 Lee, and instructed the jury that, if they should find that Gordon Lee and Tom W. Lee were owners of the land, a dedication by Gordon Lee would be binding upon his co-owner if he thereafter acquired knowledge of such dedication; and also that, if the jury should find that the property at the time of the alleged dedication thereof by Gordon Lee belonged to James Lee, and he, James Lee, thereafter acquired knowledge of such dedication, and notice that the property was thus being used by the public, this would amount to an implied dedication on the part of James Lee, or to an implied ratification by him of the acts of Gordon Lee in making the dedication.
The excerpts from the charge here complained of went outside the contentions of the plaintiffs as set up in their petition, and submitted to the jury issues not specifically raised by the pleadings, in that the petition alleged an express dedication of the land here involved for cemetery purposes by two named individuals, and did not allege an implied dedication by them or by James Lee, the other person therein referred to. Ordinarily such a charge would be erroneous and would require a reversal. See Martin v. Nichols, 127 Ga. 705 (56 S.E. 995);Savannah Electric Co. v. McClelland, 128 Ga. 87 (57 S.E. 91); Burdette v. Crawford, 125 Ga. 577 (54 S.E. 677);Cordele Sash, Door Lumber Co. v. Wilson Lumber Co.,129 Ga. 290 (58 S.E. 860); Hand v. Matthews, 153 Ga. 75 (3), (111 S.E. 408); Citizens Bank of Roswell v. Reese, 145 Ga. 110 (2), (88 S.E. 57). However, in this case, these excerpts from the charge, which would ordinarily be cause for reversal, were rendered harmless for the reason that, as we will undertake to point out in division 9 of the opinion in discussing the general grounds of the motion for a new trial, a verdict was demanded for the plaintiffs under the evidence introduced without objection, which conclusively established an implied dedication for cemetery purposes of the land here involved. In Napier v.Strong, 19 Ga. App. 401 (2) (91 S.E. 579), it is held: "A plaintiff must recover upon the cause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though a different cause of action may appear from testimony admitted without objection. But evidence, admitted without objection, which supports what is in fact the same cause of *Page 678 action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant." See also Irvin v. Locke, 200 Ga. 675 (38 S.E.2d 289); Steed v. Rees,192 Ga. 20, 24 (14 S.E.2d 474); Rocker v. DeLoach,178 Ga. 480 (2) (173 S.E. 709).
7. In grounds 15 and 16 of the amended motion for a new trial error is assigned on an excerpt from the charge of the court set out in the 15th ground, for the reason that by this charge the court eliminated from the jury the contention of the defendant that he was not interfering with the plaintiffs, and that there had been no act on his part which would entitle the plaintiffs to an injunction against him. These assignments of error are without merit for the reason that in paragraph 6 of the defendant's answer he admits "that he did have certain warrants issued for certain persons who came upon his land and were digging a grave for the purpose of burying a body thereon," and he further shows that he did "put one log across his farm road leading to said burying ground." These acts on the part of the defendant, as admitted in his answer, amounted to such an interference with the use of the premises for cemetery purposes as authorized the grant of the injunctive relief sought. The charge here complained of was, therefore, not harmful to the defendant.
8. Grounds 3 and 18 of the amended motion, complaining respectively of the admission of testimony and of an excerpt from the charge of the court, are without merit and do not require elaboration.
9. We come now to a discussion of the general grounds of the motion for new trial in the light of the pleadings, the evidence, and the law applicable thereto.
There are certain essential elements to a valid dedication of land to public use: (1) an intention on the part of the owner to dedicate the property to a public use; (2) an acceptance thereof by the public; and (3) where implied dedication is relied upon, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift. Healey v. Atlanta, 125 Ga. 736 (54 S.E. 749; Hyde v. Chappell, 194 Ga. 536 (2) (22 S.E.2d 313); Tift v. Golden Hardware Co., 204 Ga. 654 (4) (51 S.E.2d 435). *Page 679
"If the owner of lands, either expressly or by his acts, shall dedicate the same to public use, and the same shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he may not afterwards appropriate it to private purposes." Code, § 85-410.
In City of LaFayette v. Walker County, 151 Ga. 786 (108 S.E. 218), it is held: "It is not essential to constitute a valid dedication to the public that the right of use should be vested in a corporate body." In this same case, on page 791, it is said: "Intention to dedicate may be inferred from acquiescence by the owner in the use of his land by the public, if the use be of such character as to clearly indicate that the public accepted the dedication to the public use."
As pointed out by this court, in Atlanta Railway Power Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, 492 (39 S.E. 12), "The first time that the doctrine of dedication was expounded by this court was in the case of Mayor c. of Macon v. Franklin,12 Ga. 239, in which case Judge Nisbet (as he uniformly did in other cases) delivered an exhaustive and instructive opinion. The court there ruled that a dedication to a public use is effected when one, being the owner of lands, consents, either expressly or by his action, that it may be used by the public for a particular purpose. Since the date of that decision, which has stood as the leading case in Georgia on this subject, numerous cases have invoked confirmatory rulings by this court on the points there decided. See Parsons v. University, 44 Ga. 529; Chapman v. Floyd, 68 Ga. 457; Southwestern R.R. v. Mitchell,69 Ga. 123; City Council of Augusta v. Burum, 93 Ga. 68 [19 S.E. 820, 26 L.R.A. 340], and cases there cited."
In Mayor c. of Macon v. Franklin, 12 Ga. 239, supra, we find these statements: "There is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use. A grant is not necessary to create it. And in this consists its main difference from a license to individuals. It is made without a grant, and it exists, although the legal title remains in the maker. The technical objection to a dedication was that it could not exist without a valid grant from the owner of the fee, *Page 680 and inasmuch as the public is incapable of contracting, it could not exist at all. The courts, however, very early overcame this objection, and held that a deed was not necessary to a dedication. The rule that no grantee is required, grows out of the necessity of the case.
"Dedications of lands for charitable and religious purposes, and for public highways, are valid without any grantee to hold the fee, and the principle upon which they are sustained, sustains dedications of streets, squares and commons.
"When lands are dedicated, and are enjoyed as such, and rights are required [acquired] by individuals in reference to such dedication, the law considers it in the nature of an estoppel inpais, which precludes the original owner from revoking it. . .
"I have stated that no particular form or ceremony is necessary to make a dedication. It may be created by parol and proven by parol. All that is required (say the Supreme Court of the United States, in Cincinnati v. White's Lessees) is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation."
Webster defines "assent" to mean: "Mental concurrence or expression of concurrence in a proposition; agreement; acquiescence." In 6 Words and Phrases (Perm. ed.), pages 407, 408, the word "cemetery" is dealt with in the following excerpts therefrom: "The word `cemetery' is defined by Webster to be a place or ground set apart for the burial of the dead, and this is the popular idea. What creates the cemetery is the act of setting the ground apart for the burial of the dead — marking and distinguishing it from adjoining ground as a place of burial. Concordia Cemetery Assn. v. Minnesota N.W. R. Co., 121 Ill. 199,12 N.E. 536, 541." "A `cemetery' is defined as a place where human bodies are buried; a graveyard. Actual interment and inclosure of land for use as cemetery constituted dedication as cemetery of all land so set apart, whether occupied by graves or not. Smallwood v. Midfield Oil Co., Tex. Civ. App.,89 S.W.2d 1086, 1090." "A cemetery includes not only lots for depositing the bodies of the dead, but also avenues, walks, and grounds for shrubbery and ornamental purposes. All must be regarded as consecrated to a public and sacred use. Evergreen Cemetery Assn. v. City of New Haven, 43 Conn. 234, 243, 21 Am.Rep. *Page 681 643." "A cemetery is as public a place as a courthouse or market. It may not be frequented as much, but visits to it are as necessary and as certain, and the accommodation of the public requires a highway to it over which all must travel, so as to permit its dedication by public use. Cemetery Assn. v. Meninger, 14 Kan. 312, 313." There are citations from other States along the same lines. And see also Williams v. Ramey,201 Ga. 737 (41 S.E.2d 159); Hutchinson v. Clark,169 Ga. 511 (150 S.E. 905); Dunaway v. Windsor, 197 Ga. 705 (30 S.E.2d 627); Gartrell v. McCravey, 144 Ga. 688 (87 S.E. 917).
How stands the plaintiffs' case under the evidence? The defendant did not take the stand in his own behalf, and introduced no evidence. The evidence adduced in behalf of the plaintiffs demanded a finding that, some fifty years prior to the filing of the petition; there had been an express parol dedication by Gordon Lee of the land described in the petition; and that the land so expressly dedicated by Gordon Lee was an acre of land in the form of a square, which was stepped off by a named person in his presence, and stakes driven down at the corners thereof by a person named in the evidence as one Cicero Glenn. The evidence to show in whom the legal title to the land was vested at the time of the dedication thereof by Gordon Lee is very slight. Several witnesses referred to the land as "belonging to the Lees," and one or two of the witnesses stated that it belonged to Mr. Lee (referring to Gordon Lee). The evidence discloses that Gordon Lee had several sisters and a brother, Tom W. Lee, and that his father and mother were both in life at the time of the alleged dedication, and remained in life for a time thereafter, the exact time of the dedication and the exact length of time that James Lee, the father, lived after the alleged dedication not being disclosed by the evidence. Except as above indicated, the evidence fails to show in whom the legal title to the land was vested at the time of the dedication, or from whom or how title to the land in dispute was acquired by Clarke Lee Nunnally. However, the evidence does show that Gordon Lee went upon the property at the time of its dedication, and was thus exercising possession over it. The evidence further discloses that, immediately after this dedication of the land for cemetery purposes by Gordon Lee, it was accepted by the colored *Page 682 people, and on that day or the day following the first colored person was buried thereon; that, since that time the use of this particular acre of land for cemetery purposes has been continuous for more than fifty years; and that there are now located on this land several hundred graves, including the graves of the defendant's father and mother. The evidence further discloses that Tom W. Lee and James Lee lived at Chickamauga and within about two or two and one-half miles of this cemetery.
While the proof fails to show that Gordon Lee and Tom W. Lee were the owners of the land at the time of its express dedication by Gordon Lee, it is shown by the allegations of the petition that Clarke Lee Nunnally acquired title to this property on July 15, 1903; that thereafter the property was conveyed to G. L. Bonds on November 2, 1911; that on November 22, 1915, G. L. Bonds conveyed the property surrounding the cemetery and roadway to G. W. Haslerig, the father of the defendant; that on November 7, 1918, G. W. Haslerig conveyed it to his three sons, C. D., A. L., and S. S. Haslerig; and that thereafter, these three brothers divided the tract of land among themselves, had the same surveyed and in this way A. L. Haslerig, the defendant, acquired possession of the portion of the tract surrounding the cemetery and roadway; and these allegations are admitted by the defendant's answer. The evidence discloses that prior to 1899 this tract of one acre was being used as a cemetery and graves were located thereon. At the time each of the conveyances above referred to was executed, this condition existed for everyone to see. While it is alleged in the answer that no reservations of the cemetery tract or roadway were made in either of the conveyances, in Hines v. State, 126 Tenn. 1 (149 S.W. 1058), it is held that, although land containing the family burying ground is conveyed without any express reservation of this portion, there is an implied reservation; inasmuch as the graves are there to be seen, the purchaser is charged with notice of the fact that the particular lot has been dedicated to burial purposes. In Roundtree v. Hutchinson, 57 Wn. 414 (107 P. 345), it is held that an implied common-law dedication of land for public use for burial purposes is effected by permitting its use by the entire neighborhood as a place for interment of the bodies of the dead for a long series of years. *Page 683
In 10 Am. Jur. 489, § 6, we find these principles announced: "It is well settled that land may be dedicated to the public for cemetery purposes. In the absence of statute, no particular form or ceremony is requisite to accomplish such a dedication. The intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in thelong-continued use of his lands for such purpose, aresufficient. The dedication may be made by grant or written instrument, but it is not necessary that any conveyance shall be made or that there shall be any person capable of taking a conveyance otherwise than in trust. While acceptance by the public is necessary to complete the dedication, such acceptancemay be implied from acts and from the use of the land; and when the dedication is beneficial, greatly convenient, or necessary to the public, an acceptance will be implied from slight circumstances. The notorious use of property as a burial groundfor upwards of twenty years, with the knowledge and acquiescenceof the owner, affords presumptive evidence of its dedication as apublic cemetery, but no particular time during which the land is used for burial purposes is necessary to prove dedication." (Italics supplied).
The evidence discloses that the use of this land for more than fifty years as a cemetery has been open and notorious, and acquiesced in by every person who held title to the surrounding lands, at least to the extent that no objection is shown by the evidence to have been raised thereto, and that even the defendant himself has owned an interest in the property since 1918 without making any objection to the use of the land until 1946, a period of approximately twenty-eight years. In 10 Am. Jur. 491, § 8, it is said: "When a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose." The following cases are cited in support of this statement: Mt. Auburn Cemetery Co. v. Cambridge, 150 Mass. 12 (22 N.E. 66); Hines v. State,126 Tenn. 1 (149 S.W. 1058); Oakland Cemetery Co. v. People's Cemetery Asso., 93 Tex. 569 (57 S.W. 27); Ritter v. Couch,71 W. Va. 221 (76 S.E. 428).
We hold that in this case such express dedication of the land *Page 684 and roadway by Gordon Lee and the use thereof as disclosed by the evidence for more than fifty years — with knowledge of such use on the part of the defendant for approximately twenty-eight years, and without any objection on his part until immediately before the filing of this suit — demanded a finding in favor of the plaintiffs that there had been a dedication of the property for cemetery purposes, and that the defendant cannot now appropriate it to his use or interfere with its use by the public for the purposes for which it was dedicated.
Judgment affirmed. All the Justices concur.