YOUNG t. BOARD OJ' OOy'BS.

585

al.

YOUNG t. BOARD OF

CoM'RS

OF MAHONING COUNTY d.

(OCrcuu COUrt, N. D. 0M.0, B. D. May 21, 1899.)
L

FoLLOWING STATE PROOEDURE-E.JIlCTlIlENT-PLEADING.

In an action brought in the circuit court for the northern district of Ohio for the recovery of real property, although the form of procedure is under the Code of Ohio, the remedy is substantially that of ejectment at common law, and therefore in such action matters cannot be pleaded in the answer, or averred in the reply, which are only of equitable cognizance.

B.

ESTOPPEL"IN PAIS.

Where a person claims a reverter of lands dedicated as a burying ground because of the abandonment of such use alld the erection of a courthouse thereon, there is no room for an estoppel on the ground that he stood by in silence during the erec· tion of the building, when it appears that he had not been in the town for 40 years, and in fact was not aware of the abandonment for 10 years after the courthouse was completed. '

.. CEMETIlBIES-DEDICA'l'ION-ABANDONlIlENT-REVERTEB.

'I'he city council of YOUJ;lg-stown, Ohio, by an ordinance passed in pursuance of the authority conferred 17 sections 20 and 23 of the Municipal Code of Ohio, 88 amended by the act of March 30, 1859, (56 Ohio Laws, 88,) prohibited any fUl,ther interments iIi certain lots within the city limits, which had been dedicated and used as a burying ground, and ordered the removal of all remains buried there; Held, that the ordi'. nance was a valid exercise of the police power of the state, and binding on all the inhabitants of the city, and therefore operated as a complete abandonment of the dedicated use, such as would cause a reverter of the lands to the original owner or his hews.
CIJ pres, for a dedication, especially a common-law dedication, is of the land fO,r a

&.

S.ulE-CY PRES-PRESUMPTIONS.

There was no room in such case for the application of the equitable doctrine of

specific usel and it is not Within the presumed intention of the dedicator that the" lands shall De sold and the'proceeds applied to a similar use. '

I.

SAME-QUITCLAIM DElliD-CONSTRUCTION.

In 1802 the founder of Youngstown. Ohio, signed and, recorded a town plat, on which certain lots were marked as "Burying Ground, " but he failed to acknowledge the plat, as required by the Ohio Statutes, and therefore the fee did not pass. The lots, however, were long used as a burying ground, with the acquiescence of hhnself and his heirs. In 1865 an adjoining lot owner fenced in a portion of the graveyard, and an action was brought in the name of the county commissioners to recover the same, but was defeated on the ground that the commissioners had no title. There, after certain persons interested in protecting- the graveyard procured an act of the legislature, (64 Ohio Laws, p.l02,) providing that the title, right of possession, and control of all dedicated graveyards, and those used as such, but not dedicated according to law, are hereby vested in the cities, towns, and villages in which the same are located; and the council thereof shall have power to preserve and protect them, and "make such ordinances, sales, and regulations". as shall be necessary, and to bring suits to recover possession thereof, and protect the same against trespassers. Thereafter the parties who had interested themselves in the matter wrote to the heir of the dedicator, who lived in New York, explaining all the facts in the case; especially the trespasses, the litigation, the want of acknOWledgment to the plat recorded by his ancestor, and the passage of the act of the legislature, and appealed to him to make a quitclaim deed to the village. sending him a draft thereof. This deed he accordingly executed; The grant therein was to the village of Youngstown and its successors, forever, 'Ito be under the authority and control of its proper council and municipal authority in conformity with the act of the legislature in that behalf." Held, that the act of the legislature referred to was the one proCUred by the interested parties, and the ..efl'ect of the reference was to require it to be read into the deed; and that, taken in connection with all the circumstances, the deed must be considered only as a means of correcting the want of acknowledgment on the original plat, and conveyed, not a fee simple, but merely a determinable fee; and that a reverter took place when the use as a burying ground was authoritatively abandoned. The conveyance being in fee to the village to exercise a certain defined possession and control, namely, that possession and control exercised by the public over IIIn easement acquired by a common-law dedication, the fee reverted by a simple termi· nation of the estate on the impossibility of exercisinK that possession and control;

&. SAME-CONDITION SUBSEQUENT-CLAUSB 0]1' RB-BNTRY.

and the cases which hold that a condition subsequent cannot be created in a deed b:v: .unless a: clause of re-entry for fprfeiture" n,.ve no applicatitill·.,' ",' . " ,' . , " , "'" 7. In pfJtld surrpun<1ing the tr!lnsaction and within the knowledge of both parties were admissible in evidence, and therefore the letters communicating to the, grantor the situation in respect to the cemetery were cOI,Ilp,etentj but any declara:tilltis by the grantor 'as to his intention in making the deed' 'llVere irrelevant. ' , ,"' . . . ""'. ',." ; A'i;lattorlley who cou1J,llel fpr the grantor inotber matters, represented the mterested parties in the smt respecting the cemetery, and joined in the representations made to the grantor for the purpose of procuring the deed. the attorney"in a memorial to the village council on of the in.ue,st. .. it to ac®pt tll,'e. deed, express,ed t,he' opimon that the ".te. st(lil.','p. re q '<I ;. :si> title in tbe'village.as to permit the use of the fo!' other purPQ8llII,lJbo\Hdthe health of. the Clty require its abandonment all a burymg ground, ez/t 1;lt"'tthis. statement WaS irrelevant on the question as to 'the elfect of the deed. ,. ','I.,',." " ' , ' , .
B i ..

SAME-CONSTRUOTION OJ!' DEED-EvIDENOE.

Action ·. by, CharlesC, Young against tl:!e.1)oll.rd of county oomtniasioners of Mahoning county, Ohio, the city of Youngstown, Ohio, to lands;, JUfy, waived, and trial to the court. ' Judge: This is an actitm for the recovery of the possession ofreal property by Charles C. Young, a citizen of the state of New York, against the county commissioners,()f Mahoning cO!1nty, Ohio. The subject-matter of the suit islot :til:0; !)60f John Young's original plat of the village of Youngstown,uponwhich now stand, the courthouse, jan, and county offices of Mahoning county. John Young, the common source of title for plaintiff'a!leJ, de(endants,s'igrieda.nd recorded in 1802 a town plat of 100 lots in the township of Youngstown, then in the county of Trumbull, but qpw in that of plat .acGompaniedbY a description of and squares!it purported·to dedicate,,' bllt'it was not acknol*lel,'lged in accorgarice.with the statute then jn fQrce,and did not, therefore, have any .effecttotake the fee out of John Young. Lots Nos. 96 011 this plat .were eachnllU'kedwith the words "Burying Ground;" 'They He on opposite sides of Market street, and on the south side of North street, city of Youngstown·. Frorp the early paFtof the century unti11868 the lots were used as' a burying ground. h 18q5, one Niblock, owning an adjoining lot, fenced in 30 feet of lot 95. This was much resented by theoMer citizens of Youngstown, whQse parents and relatives were. buried in the cemetery, and the aid of a local court was invoked to prevent the desecratipn. Suit was first brPllght in the name of the county commissioners, but was defeated on the'ground'that title to thelotwas notin them. Suit was then brought againl:ltNiblock in the .name of foUr citizens of Youngstown for the benepublic. Govl"I)avidTod,whose father WliS buried in the old cemetery, was one ofthe plaintiffs, and tOQk,ap. part in the controversy. B. F. Hoffml;mlwas retaineJllas counsel fOf the plaintiffs in that suit in the difficuHy about. tbetitle, Hoffman drew and procured thepasaage ,of an act by the legislature, (April 3, 1867,) entitled"An act "for"too protection;ofcertaingraveyards and burial

Y,OUNG V. BOARD

OF

COM'RS.

587

grounds,» (64 Ohio Laws,p. 102.) The first section only is important here. It reads as follows: "That the title, right of 'possession,: and control to and in and of all public graveyards and burial grounds located within incorporated cities, towns. and villages, which have, in fact, been set apart by the owners and dedicated as graveyards and burial grounds, for the use and benefit of the public. and used as such by the public, but which have not been dedicated according to the forms and requirements ofIaw, * * * be, and the same are hereby, vested in the cities, towns, and villages, respectively, where any sHeh graveyards and burial grounds may be located; and the councils' of sUl;h cities. towns, and vllla!!es are hereby ll.uthorizedand reqUired to take possession, control, and charge of all such grounds within their respective limits, and protect and preserve the same, and mllke snch ordinant:es, sales, and regUlations-as may be necessary and proper for said purposes, and consistent with the health and welfare of the inhabitants; and they are also authori7.ed and required. when necessary, to institute suits in the names of said municipal corporations, to recover possession of said gravl:'yards and burial grounds, remove trespassers tbel'efrom, and recover damages for injuries thereto for any or to any tomb or monument therein." part Pending the suit, aud after the passage of the foregoing act, Hoffman was employed by Charles C. Young, the plaintiff in the case at the bar, who lived in Whitestown, N. Y., to look after pieces of land in Youngstown, title to which, by descent from his father, John Young, the maker of the town plat, and by conveyances from his brothers and sisters, had then become vested in him. Hoffman and Gov. Tod, on behalf of the plaintiffs in the Niblock suit, and for the purpose of removing any question of title from the controversy, appealed to Young to execute a quitclaim deed of the burying ground to the village of Youngstown. Both of them wrote letters to Young, explaining in full the situation; the defect in the original dedication of John Young, the use of the burying ground for half a century with John Young's consent, the actual dedication thereby, the trespass by Niblock and others, the failure of one suit for delectoftitle, and the recent passage, as an attempted remedy, of the act of the legislature at Hoffman's instance. Young had not been in Youngl:!town since 1848, and did not visit it again until 1888. His only knowledge of the circumstances was gained b'om the correspondenee with Hoffman and Tod. Hoffman drew the quitclaim deed, and forwarded it to Young, who exeuuted it in July, 1867, amI sent it in Oc-, tober of the same year to Gov. Tod, with instructions to deliver it to the council oUhe village on condition that the village would pay Hoffman $15 due him from Young for services in other matters. By the quitclaim dl'ed, Young, "for divers good causes and considerations thereunto moving, especially for one dollar received to" his full satisfaction, ahsolutely gives, grants, remises, releases, and quitclaims "unto the said incorporated village of Youngstown and its successors, forever, to be under the authority and control of it8 proper council and municipal authority, in ccmformity with the act of the legislature of Ohio in that behalf, all snch right and title as I, the said C. C. Young, as one of the heirs, and as assignee and grantee of the other heirs and devisees of J.)hn Young, the original proprietor of said township and village lands, have or ought to

588

FEDERA1.- REPORTER,

vol. 51.

have ip or the following described lands: Situate in said village, and known and designated on the original plat of flaid village made by said John Young, and recorded in Trumbull county records of deeds, Book A, page 118, as burial grounds, and being inlots number ninety-five and ninety-six, and used as burial grounds by the citizens of said village and township since about the year A. D. 1799. Said inlot No. 95 lies onthe'west side of Market street, and extends westerly to inlot No. 94, and 'covers all the ground inclosed and used as a burial ground for over fifty years; and said inlot No. 96 lies on the east side of said Market street, and includes the ground inclosed and used as a burial ground for a like. period. To have and to hold the premises aforesaid unto the said grantee, said incorporated village of Youngstown, and its successors, forever. " After the passage of the act of the legislature referred to above, Roffman the village of ¥oungstQwna party to the suit against Niblock; and whentbe deed was 'received from Young, on behalfof TQd and the other plaintiffs in the Niblock suit, he filed a memorial with the counyiIlage, reciting everything which had beenoone in the suit, the procurement of thell.ct of the legislature and the quitclaim deed, and, ,praying that the expenses theretofore incurred by the plaintiffs be assumed by the village, and that the suit be thereafter prosecuted by it, and, in furtherance thereof, that the deed be accepted, and Hoffqlal1's fee due from Young be paid. The prayer was granted by the village council, the deed was accepted, all previous expenses and fees were assumed and paid, and JUdgelioffman was continued as the attorney of the village in the suit.. In this memorial, Hoffman, as an inducement to the village council to accept the quitclaim deed, expressed his opinion that the deeq so vested the. title in the village as to permit it to use the burying ground for generalpllblicpurposes, should the time ever come when the health of the city would require the removal of the cemetery from the village limits. (This statement of Hoffman,as to the efof the quitclaim deed, as will be seen from the opinion of the court, was held irrelevant and incompetent.) In 1852, a new cemetery had been established beyond, the limit.s of Youngstown, and after 1860 nearly, iinot all, the intermel).tswere made there. From 1860 to 186.5 the remainsof some o.fthe delld were removed from the old to the new cemetery. Between: 1865 and 1868 the -removals were more frequent, and the old ground was. Pluch neglected; the fences were not kept in repair, grl;tvel was dug on the lots by the city authorities, and in some instances nnd hauled away. Finally, on December 22, 1868, the councHof Yqungstown, which had then ceased to be a village, lljlldbecome acit,r, passed an or'linance by which all interments in the old thereaftedorbidden, and the remains of all already Qurying.ground interred be removed by friends. and relatives Qefore April ordered removed at public expense. A second resolution, directing the street commissioner to remove, at public all bodies still in lots 95 and 96, was passed in 1871. After this the lots lay unused, except that gravel was taken from them by the

YOUNG V. BOARD OF COM'RB.

589

city authorities for making and repairing the streets. In 1874 the legislature passed an act providing for the removal of the county seat of Mahoning county from Canfield to Youngstown on a majority vote at the next election, and on condition that the citizens of Youngstown should donate to the county a lot or lots, and should erect thereon the county courthouse, jail, and offices, at a cost of not less than $100,000, free of expense to the county. 71 Ohio Laws, pp. 180,181. The result of the election was favorable to the removal, and March 16, 1875, the council of the city of Youngstown passed an ordinance reciting that the title to the two lots, Nos. 95 and 96, (which by a new numbering had become lots Nos. 355 and 417,) was in the city of Youngstown in fee simple, and directing a conveyance thereof to five named citizens of the city of Youngstown, who were constituted a building committee charged with the duty of erecting the courthouse and other buildings, on behalf of the people of Youngstown, and of conveying the same, when completed and accepted, to the county commissioners of Mahoning county. The ordinance gave power to the building committee to build on either of the lots, or to sell or exchange either or both of them for the purpose of securing a more desirable site, and to det'ote any sums so realized to the erection of the courthouse. On March 30, 1875, the mayor of Youngstown executed the conveyance accordingly. The courthouse and other buildings were duly erected on lot No. 96, (or, by later numbering, No. 417,) and on August 10,1876, were conveyed by the building committee to the county commissioners. The courthouse and county buildings have ever since been, and are now, occupied by the courts and officers of Mahoning county. Lot No. 95 was not used by the building committee, and the title to that lot,if the city of Youngstown had the .right to convey it, is still in the building committee. The present action involves only lot No. 96. Andther action of the same kind, by the same plaintiff, is pending in this court against the building committee to recover possession of lot No. 95. In the petition the plaintiff averred the original title of John Young, the cOi.llmon-law dedication of the land as a burying ground under the defective plat and subsequent use, the final and lawful abandonment of the lot by the city of Youngstown as a graveyard in December, 1869, the appropriation of it for a county courthouse in 1875, and the consequent reverter to plaintiff as heir, and as grantee of his brothers and sisters,' the other heirs of John Young, who died in 1825, intestate. In his first cause of action plaintiff asked judgment for the possession of the property, and in a second sought a judgment for 14 years' mesne profits. The county and the city filed separate answers, which were SUbstantially similar. They deny that plaintiff has any estate in the land sued for. They set up the quitclaim of July 10, 1887, as conveyingfrom him to the city, for a sufficient and valuable consideration, a complete title in fee simple. They plead more than 21 years' adverse possession in defendants from July 10,1867, and finally they ayer that plaintiff has acquiesced in the use of the land for a courthouse; that he has stood by and permitted the expenditure of $100,000 f6r that pur-

QDERAL:Q.EJ;>ORTER,
,-, -. ,. .' I

:vol. 51"

; . " ·

title, and is thereby estopped to coullt for mljsne ,prpfits, the city or lfyeilrs, bqth plead the fOlijr-yearaQd bar of thl;),1)tatute of limitations, The plaintiff replie4.,.Qianying that the quitclaim deed. gave the city a right, to use the land;Qo.J1lveyed for other than burial purposes, and' the revertl!ll' under that deed. Further replying, the plaintiff that the on the representation that the deed was <mly needed togi;\fe,tit1e for the purpose the graveyard, and would only fl,l1.d that, if the deed haEl any other effect, it is void far fraud in it; and finally that both parties understood the, .effect of the deed:tQpeas stated. alld, if thtL)anguage had any effect, it Qqtexpress the intention ofthe parties; .plaintiff prays that the poqrt will reform the deed ,to that end. A jury was waived in by both parti(;!s,..l'lInd the Cll,Bewas submitted to the court. H.¥tchim and Gen,Sanderson, for plaintiff. , . . A. W, Jrmes, Judge Arrel, Hine « Clark,1JiFmey Rodgers, and George E. R08I1·. fordetendapts, , Before TAFT, Circuit Judge·. and nICKS, District Judge. " a

TAF'l'" ,Circuit stating the case as above, delivered the court. .. opinion of ,raisis:anaction at JalY. The form of procedure is under the Code of Ohio, but the. jSBubstantia!1Y that of ejectment at common if at all, 011 his title as.it is. If equitable are. needed tPPlilflCyt his right <;If pos:;ession, he fails. In like qnly .de/l3D&esat)aw are here.Jhe de.ense of estopPfll in. pleaded in.:,Hl6,llnswer, would seem tobeiOfequitable TOg-. nizance, and hardly to or considered here, ,However that maybe, if it were a valid plea, there is no evidence to support it, because the courthouse was ereded 10 yeara before thlil, plaintiff (who was 11;ot in ¥ollngstownfrOlu, :H148 to 1888) knew anything of the abanJonburying gr{)l;lnd, or its subsequent use for general county purp.oses, Theavermel1:ts'9f the reply charge fraud in the procQ.rement of thejq\litcj(lim,deed and a mutual mistake, fl;nd upon which set al:1ide or retilTlned, present matare ters only of and are wholly irrelevant to this issue. J.t is questiqnal,>le ,practiqe,iflVel1undel' the Ohio Code,for the plaintiff tpask for new a,nd sUbstantilll,relief in a.reply, lBowm.an v.Rllilrolld Co.· 1.0hio Cir. Ct,' ij,. 64j) .but"however this be, .the averments and are in the .·ac;tiOl1 of !,Plaintiff's g90d" is lawderlicatiqll ofhlE! rincest!Jr; ;¥oung, or his own qu,itcluirn lked. The qe.<Hcatio!l ,to fpr Ulle.tl,S ground. Commonbyway of estww:l. v. Mehrenfd.<f'l ·,g"Ob,iq'ot.d4.0: ! ,Bfmte, 19. 0.hio 238., '. A,cqJJiescence:41 the' owner in the land by the ppblic estopli,him (rqurasS\:l,r:ting aright of US<;l·. Wh!;lll, b9wevtll', thei . .·

ptitJlic' anlI 'finally abandons the use, there horoomfor further estoppel. . The easernerrtof the public":-forsttch it only and the holder of the title in fee may resume exclusive possession and beneficial eiljoyl'I'leht. 'The· estoppel, 'of course, can only be commensurate with, use, acquie'scencein which gave rise to it; and when' that lawfully ceases the dedication has spent its force; and the land reverts to the dedicator and his heirs. A 'coulmon-Iaw dedication is for the benefit of the public, and every member thereOf has an interest in it. Legislation may vest in the governing body of a municipal corporation such complete representative powers as to enable it to bind the general public by an abandonment of a public easement. If the abandonment is lawful, i. e., if made in such a way as to bind the public and all beneficially interested, the easement ceases, and the land reverts. It often happens that the corporation, or its governing body, is merely a trustee for the preservation ofthe easement, and has no power or discretion to' abandon it. In such a case, if the trustee misuses ,the land, in violation of the rights both of the dedicator' and of thec:estuill que trustent,. the dedicator cannot repossess himself, but he or the beneficiaries of the easement may apply toacourt of equity to enjoin the misuser, and compel· the trustee to allow a resumption of the easement. In such a case, theabil.lldonment of the easement not having been lawful, there is no reverter. Viewed in this -light, the authorities are not in conflict. The language of Mr. JusticeMcLEAN in Barclay v. Howell's Lessee, 6 Pet. 498, is relied on by the defendlintsRs -establishing a different rule. He says, (page 507:) "If tbiB.groundbad bello dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might af. ford ground for the interference of a court of chancery to compel a specific execution of the trlll'lt by restraining the corporation, or by causing the removal of obstructions. But. even in such a case, the property dedicated would not revert to tbe original owner. The use would still remain ipthe public." This language is quoted with approval by Judge THURMAN, in Williams v. Society, 1 Ohio St. 478-496, with the intimation that it is only where the use becomes impossible that the land will revert to the original donor., The samedocttine thus qualified is to be found in Le (Jlercq v. GallipoliS, 7 Ohio, 2t8-:221j Webb v. Mole)", 8 Ohio, 548; and in Dill. Muo.' Corp. (4th Ed.) § 653. The principle has application poly to 'cases where the misuser or abandonment is by a trustee controlling the easement and failing to discharge his or its duty. It certairily does not lipply where all the persons beneficially interested give up their rights in the easement, for it would be a novel doctrine that an eaSell,lentmay hot be abandoned by the public. Indeed, in the very case of Barclay v. Bowell's Lessee, supra, Justice McLEAN says, (page 513:) "By the common law the. fee in the soil remains in the original owner, where a public road is establishedover it; but the use of the road is in the p\lblic. The'owner parts this use only, for if the road shall by the publiCi he l.'esumes'exCldsive possession of the ground."

is

{)92

51.

If a public body is more than a ,mere trustee in respect to its control oian easement, if it may act;on its discretion for the public to say whethertheC,ontinued enjoyment ofan easement is really bene.ficial to the P1;1blic, if, in other words, under the law it is the public for this purpose, theJ;} it-way lawfully abandon it. In every case, therefore, where a ra0;£ land dedicated to a specip.e use is claimed by the original owner of abandonment or misuseI'; the question whether reverter ha$f,ak!ln place, or whether the owner sho,uld .be remitted to a court of equjty:f,oenforce the dedicated use, m\lstdepend upon the further questiQl1wll,ethElr the abandonment of .the,dedicated use was lawful, i. e., violation of the rights. of any the trustent. If it was lawl , :1;b" U!:nd reverts. ',l'hereis no from this conclusion i othertoaspecific use, ,and acqeptance,by the public, is a publiq ,fo,r.ever to cOl1tinue the use, which neither the Publiop<?r th", publica.nd Jhe dediCl+tor b)gether can rescind,,--a propositi<>q I apprehel;l,d, will be . . W!tJ¥>IJW, therefore, to the question, Wl!-S the abandonment' oflot No. 96 as a graveyard lawfld? The.replOval from the lot in 1865, 1866, 1867" and1868 of the;J,'emains of.many buried there, by their friends, did;, not ,constitute an aOal1donment. Ihe did not thereby lose its ,character as a burying ground. Nor djd the neglect to keep the groulld properly nor the digging !lnd hauling of gravel from its surface, that,effect. But when, on 22, 1868, the council of the city of ¥oullgstownpassed an ordinal).ce prohibiting further interAlents in lots. 95 ,!lnd 96, and ordering the reIlloval of the repfjhose buried there, and the removals were accordingly made, this abandoqment lots. as a l;eti:letery. It is quite pqssi/:>le tbal.the coupcil .di(1 not so reprllsent pl)blic's, interest in as to be able to finally abandon it for them. With the respect to it,the council was probably only a trustee. But the council, its the controlling authority of the city, thereby exercised lawfully the police power vested in the state government which the legislature had delegated to it. As. measu,re neGessary for public health and comfort, thldegislature lawfully enact that the bl)rying grounds .cities of the second class, -of which Youngsshould be ,rem.oved' town wasqlle,-or it mIght delegate to its couucil power to ordain the ]Ylun.Corp. (4th Ed.) § 372 etse,q.; Kincaid's Appeal, 66 ra.St. 411;.Chmpbell v. City of Kansas, 102 Mo. 326,344,13 S. W. R 897., By the amendrrlent of March 30,1859, (56 Ohio Laws, 88,) to p. section, 23 of the Municipal Code of May 3, 1852, councils of cities and villages are given power to pass ordinances to prevent iuterments of the dellr wfttiin the corporate limits, an,d to cause removal of l:)Odies interred in By, section 20 oLthe same they 3:re given power to prevent annoyance or {njury within the of the corporation from anything dangerous or unhealthy, and to cause any nuisance to be abated. 2.swl,lp & C.p. 1498, §20. See, pages 1506, 1507, §§ 3:2,34.. :r.,egislation of this character has been held iIi the authorities cited above'todelegate power to the CouneH to pass an ordinance like

m

YO'UN<l V. 'BOARD OF COM'RS.

593

that of the council of Youngstown under consideration. The abandonment of the -graveyard was therefore lawful, and reverter followed. A continuance of the use would be in violation of a city ordinance. The use would thus be unlawful, and therefore, in legal contemplation, it would become impossible. According to all the authorities, reverter is a .consequence. Nor is there any room for the equitable doctrine of cy pres to prevent a reverter on abandonment. A dedication, and especially a common-law dedication, is of the land for a specific use. It is not within the presumed intention of the dedicator that the land is to be sold, and its proceeds devoted to a similar use, if the use of the. particular land becomes impossible. No such result could follow from the theory of estoppel in pais, on which the doctrine rests. No title is conferred for the purpose of alienation. Indeed, it has been expressly held in this state that, even under a statutory dedication, where by the terms of the statute a title in fee does pass, a court of equity cannot, in the case of land dedicated for a schoolhouse and sehool purposes, where this use has become impossible, decree a sale,and the investment of the proceeds in a new lot for similar purposes. B@ard of Education v. Edson, 18 Ohio St. 226. A fortiori will such a power not be.exer.cised where the dedication is to be enjoyed not by force ora grant and change of title,' but by force of estoppel. In CampbeUv. City of Kansas, 102 Mo. 326,346, 13 S. W. Rep. 897, land had been dedicated for a cemetery, and was used as such. Subsequently the city council, by ordinance, vacated the land for graveyard purposes, and ordered the bodies there buried removed. The city then laid off the land as a park, and improved it as such, and in all this the public acquiesced. It was held, in a well-considered opinion, that tile land reverted to the original owner on the lawful abandonment of the cemetery as such by the city. It follows that, if defendants' case rests alone' on the common-law dedication of John Young, the abandonment by the city of the burying ground, as such, causes a reverter to his heirs, and gives the plaintiff a title, with immediate right to possession. There remains to consider the quitclaim deed of the plaintiff to the village ·of Youngstown, which, of course, by its terms, inured to the benefit of the city of Youngstown as successor of the grantee. The declarations of the grantor as to his intention in making the deed are wholly incompetent, whether contained in the contemporaneous or in his testimony, and such evidence we entirely disregard. The circumstances which existed in the knowledge of both parties alone are to be considered in construing the language used. In this view, the letters of Hoffman and Tod, in so far as they communicated the situation in respect'to the,cemetery. the litigation to protect it, and the procurement of the act of the legislature, were competent to show that Young executed) and thp, village of Youngstown accepted, the deed, with that situation before them. Hoffman's statement in his memorial to the village council as to the effect of the quitclaim deed is incompetent. If Young himself had written the memorial, it could not have been used to aid in the construction of the deed under the principle already stated. v.51F.no.9-38

594

FEDERAL 'DEPORTED ,vol.

Still less,is it' admissible as I 'Hoffinun's statement: Whatever may' hav:e been '. '1fdffJ:ljli;M:J'relations'to Youngt; inrEJspect he was actingj'in lS6lJltring J4IlhlNitlitcla:imi deed, wom Young,: inOt for'l¥oungvbut for the' plaintiffs ,lin ,the's1111t to 'p'totedtthe 'graveyard." ,Hilv3S 3Sl:lttorneY' for them:1hati hEr pteael'lted the memoris,lto council,: imdnothing stated1thl:!tein was made as agent. The cQunwuaccepted the deed, otlhisadvibe,andfconsentJed'ithat his relation toithesuitagainst Nf.blodkas att0ttieyfur the plaintiffs, should continue while itwRS there.. after b&ing , prosecuted: in the 'name of the ;village" In so far as the memorial acquail1ted,thecouncil"with the actual:stalu8 of the suit, the act ofthe :legislature, etch, Ii was 'competent to show the facts in the lightot'which the deed was accepted. Comlng now to consider the 'surrol1nding circumstances, it is quite evidentl(that the fancied, rwed, for' aquitclaimdeed1vas to secure a legal title in I!()IOO'one to tiring suit for trespass on the oemetery grounds against '-Niblock. It to make' up for the defect original dedtitle.' It ma:y be true that neither the act ot,April 3',' 1867 ,:nor suoh a deed, was necessary (or; this and tha:ttteSpass might ha\l'6 'been maintained either intha'name of the section of the Municipal Code of 1852,a8 ;amended Marohl 001,01859, (56 Ohio Laws, 88,)01', if not, then in th6n(une'of,tbe of ,April13,1865, (62 Ohio gave into their ch'argesuch public bury'not'lin' charge oflia m uuici pal. corppration j but we ing grounds' know the persons interested were doubtful upon ,this point, and wish ed both: tlie n.ct: 'and the: deed to :mtlke their position impregnable, lfYounghadigiven quitclaim deed to the village it would have conveyedall:h\s in'terest;! and vested a .fee simplirinthe' 'viHage; without regard to hiS1:purpose in giving it,',for such' would be the necessaryef· fect of the' WOi'ds of the deed. No from ,the> circumstances could affect 'iiS' legal' pur}!lortjor ingraft, a; limitation 'which there was no language toitnport. The grantor, 1n his deed ,h@wever, used a clause not simplequitc1aimdeed; 'upon the)constroetion of which must tl.lrntlie,decisioriotthis cuse. He granted and quitclaimed the two lots villageatldits success@rs, "to beunder'the authority and 'control' of ,its ,proper ooUllcilarid' munioipal lluth(jrity, 'in conformity with, the li,tlt of the legislature in thatl;behalL" 'What"act of the legisof the conveyance wasil. lature is hel'a.referred to? The Burying, ground. The act referred to naturally i, therefore"relntes to the power of village councl1s over burying grounds; , If the expression here !Used, had been in' oonfofinitywith 'the laws" orstattites t)f Ohi@ in that behalf," the statutes 6t laws referred to nlust'beconst1'uedtobe such 111ws then ih ifbrce as confelTeduponthe councili()f a ,village anthority and control'over btlryirig! grounds conveyed in fee ,to the corporation j that is, laws defining the power of the council' in respect ;(0 the land corlv(lJed,iltftl9i' thect:mveyancehad' taken effect. "But the use of thesingulat:.o....!' t!ltl'\1l' act of the legislature of Ohio in' that behalf"-shows tha't purticula:r' act waSoin the mihd the grantor.' So

was

YOUNG V. BOARD OFCO,M'RS.,

595

far as I have been able to find, the control and authority to be exerdsed by village councils over buryioggrounds owned by, the corporation in fee in force when this deed was executed. were to be gathered, not from one act of the legislature, but from several. Section 23 of the Municipal Code, as amended by the act of March 30, 1859, (56 Ohio Laws, 88,) the third and sixth sections of the act of March 17,1860, (57 Ohio Laws, 46,) the second and third sections of the act of March 17, 1860, (57 Ohio Laws, 44,) and section 2 of the act of March 29, 1867, (64 Ohio Laws, 70, 71 ,) and possibly other acts, all the duties and powers of village councils in regard to cemeteries owned in fee by the corporations. Were there no other acts than these to which the language of the deed could be referred, the singular number of the word "act" would not be significant of anything except a slip by the draughtsman of the deed. But the surrounding circumstances show that there was one act, the passage of which had beeu especially procured "in that behalf," i. e., for the purpose of defining the authority and control to be exercised by the village council of Youngstown over the very land by this deed conveyed. 'fhat act applied to burying grounds which had been actually, but not formally, dedicated by the original owner, and in which, therefore, the public had only an easement. The burying grounds conveyed by this deed were of exactly such an origin. The description of .them would seem to have been framed for the purpose of'showing that they came within the terms of the act, for theyrure said to have been designated as a burying ground by John Young, the ancestor of the grantor, on his town plat, and to have been occupied as such for over 50 years. There are three distinct statements in the description as to the actual occupancy of the lots for burial purposes. When we consider, then, that one .act of the ll:'gislature satisfied the reference in the deed,-by defining the power anll control of village councils over burying grounds exactly like the one conveyed,-and that no other single act will precisely correspond to the use of the singular in the words" the act of the legislature," etc.; and when we further consider that the dl:' was given and this act was pnssed in the d same transaction, so to speak, anll that at the time of the execution of the deed the passage of the act and its object were facts fresh in the minds of hoth parties,-we are brought irresistibly to the conclusion that "the act of the legisillture of Ohio in that behalf" was this act. entitled "An act for the proteetion of certain gmveyardsllnd burial grounds," passed April 3, 1867, (64 Ohio: Laws, 102.) It follows that the act must be read into the deed. The clause, "to be under the authority lind Gontrol of the proper councilor municipal power of. the authority" ·of the village, is, in fact, a description of village itself with respect to the land to be conveyed, Jor in the view of the .granto.rthe council is to act for the village. The clause may therefore be properly iqterprl:lted, with the aids to its construction, as if it read: " Grant," etc.,,',' to the incOl;porated vi1lageof Youngst9WB and its successors, [the, burying ground described inlec,] with same power and control ovel: iHhat :is, conferred on the IHld its counci.l

FEDERAL REE'ORTER.

vol. 51,

with respect to this land by the act of AprilS, 1867." Now, what were the powers conferred on the village and its council by the act? The subject-matter of the act was burying grounds in which the public had a inere easement, and n0 title. 'rhe act attempted to change an easement into a title to land. Doubt as to the power of the legislature to do this was probably what led to the procurement of the quitclaim deed. The deed confers the title which the act purported to convey. The act requires the council to take possession, control, and charge of the ground, and preserve and protect the same; to make such ordinances, sales, and regulations as may be necessary and proper for said purposes, and con· sistent with the health and welfare of the inhabitants; to institute suits to recover possession of the graveyards; to remove trespassers therefrom, and to recover damages for injuries thereto; The word; Ilsales" is probably a mistake in printing or enrollment; the proper word in that connectionbeing ".rules." But, taken as it is, it of course refers only to sales of lots in the burying grounds for burial pm;poses,.1)ecause the sales are to be such as are necessary for" said purposes," i. the possession, control, protection,and preservation of the burying groluids. It could not have heert the intenti<>n of the legislature to transfer'the beneficial interest of the owner in fee of the burial ground to the village so aEl to permitllD' alienation of the land. ,rtwould have been entirely beyond its power. Le Clercq v. Gallipolis; 7 Ohio. 217; Board oj Education v. Edson, 18.0hio St. 221. The act, properly construed, therefore, only confers uIX'ln the village the powers and control over the burying ground which the public would have in such ground dedicated for burial purposes at common law.: It fixes the"trustee to preserve the rights of the public in a common-law dedication. The authority and control of council is Fmitecl by the act to the preservation of such rights, and by reading the act into the deed the same lhnitation upon the fee therein conveyed is created. This conclusion cannot be escaped. We have already discul:ised the limits of the right of the public in an easement dedicated at common law, and have found that on a lawful abandonment of the specific use for which the dedication was made there is a reverter to the dedicator and his heirs. No reason can be given why the same result must not follow, when,as here, the naked title in fee is added to the easement. The right of'beneficial enjoyment is not thereby increased. The fee, then, is what is caned a "qualified," "base,'" or" determinable" fee, the title reverting on the abandonment of the use, during the continuance of which, though perpetual, the fee would have remained' vested. The effect <>fthe deed here was to' ptit the parties in exactly the same situation that they would havebeen in,:had the dedication of Joh,n Young, in 1802, been in accordance with the statute then in force. Since the territorial act (if 1800 for (10hase, St. p.291,) down to section 2604 of the Revised Statutes,-see Act Feb. 14, 1805, § 2, (1 Chase, St. p. 502,) and Act March 3, 1831, (3 Chase,St. p. 1846,)-a statu,tory dedication has been deemed ua sufficient conveyance to vest the fee orauch parcels as are therein expressed, named, or intended to be for public uses in the county in which such town lies, intrust to and for

e.,

YOUNG tI. BOARD OF COM'RS.

597

the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever." This is to say that a statutory dedication shall be a naked legal title, with the same beneficial interest enjoyed by the public in an easement by common-law dedication. As we have seen, the quitclaim deed effects exactly this result. The statutory dedication, just like the deed, operates by way of grant, and not by estoppel; but the effect of abandonment of the use is the same as if the fee had not passed. The fee is a base fee, reverting to the grantor on a failure of the use. The supreme court of Ohio has authoritatively settled what effect upon a statutory dedication abandonment of the use has. In Board of Education v. Edson, 18 Ohio St. 221, the owner of a fee dedicated a lot under the statute "for school purposes, and on which to erect schoolhouses." By the location and use of a railroad and station the lot upon which a schoolhouse had been built became unsuitable for school purposes, and a petition was filed asking the court to decree the sale of the lot and the use of the proceeds for the purchase of a better site. This application, the supreme court held, must be denied. The court say, (page 226:) "Without determining whether, under the dedication, the lots could be properly used for school purposes other than the erection of schoolhouses thereon, it is enough to say that the dedication is of the land, and not of its value or proceeds. It confers no power of alipnation discharged of the use by which the purpose of the dedication might be utterly defeated. Should the sole uses to which the property has been dedicated become impossible of execution. the property would revert to the dedicators or their repre-sentatives. Williams v. Society, 1 Obio St. 478, (per THURMAN, .J.;) Le Clm'cq v. Gallipolis, supra, (per LANE, J.)" Exactly the same principle is enforced in Zinc Co. v. La Salle, 117 Ill. 411, 8 N. E. Rep. 81, and Gebhardt v. Reeves, 75 TIL 301, under a.statutory dedication which passed the fee by way of grant. The court here said the fee was a base or determinable fee. reverting on abandonment of the use. See, also, Hooker v. Utica, etc., Turnpike Road Co., 12 Wend. 371. Counsel for the defendants contend that there is a distinction between _a grant by deed and a dedication for a particular or specific use, and that a condition subsequent cannot be created in a deed by limiting the use, unless there be a clause of re-entry for forfeiture; and several strong cases are cited to sustain the claim with respect to a deed. Raley v. Umatilla Co., 15 Or. 180,13 Pac. Rep. 890; Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church v. Old Columbia Public Ground Co., 103 Pat St. 608. In Taylor v. Binford, 37 Ohio St. 262, the supreme court of Ohio declined to decide whether the law of Ohio was in accordance with these authorities, and the question is an open one in this state. But these cases do not apply in the construction of the deed at bar. Here the conveyance is in fee to the village to exercise certain defined possession ,and control over the land, namely, that possession and control exercised ,by the public over an easement acquired by common-law dedication.

vol. 51" Thefee 1?Y entry after but bya simple termination of on the irppossibUityof e;x;ercising the possession and control it wasgiveD;. The case of Slegel v. Herbine, decided court (23 Atl. Rep. 996,) is very like! l,he, one lit ,bar. In that case adef.!d was made to county and their successors for a strip of land adjoining a prison lot "reserving unto the grantor, his heirs and assigns, the free use of the premises so granted for an open yard, garden, or grass lot, with the rents, issues, and profits, to hold unto the said commissioners and theirsllCcessors, for the use that it shall remain forever Ul1built on, in,order to prevent prisoners making their escape over the said pris(.ln wall by means of any building to be erected contiguous to said wall." This wllsheldto pass a fee to the county commissioners, but from the pxpress declaration of purpose ,here was held to arise a necessary implication of the exclusion of every other purpose, which made the fee a Qase or qualified fee requiring a reverter to the grantor on abandon'ment of the prison by the'commissioners. The supreme court of Pennsylvania renders no opinion, but simply approves the learned opinion of Judge ENDLICH in the court below. In this case the distinction is poin,ted out between those,authorities which hold that the mere expreseion of a purpose does not <iebase a fee and those in which the language is of a character, either in terms or by necessary implication, to constitute such a reservation of the grant as to debase it. He says: "The, qnalification must be found in tht; instrument itself.. Union Canal v. YO/lng, 1 Whatt. 410; Ke,rUnv. Campbell, 15 PlI. St. 50U. But no especial or technical words' ate required to establish it. 2 am.'r. Lead. Cas. p. 23. 'The constrnction of a deed, as' to its operation and effect,' says speaking of this very. mattel', · will, .afterall, depend less upon artificial rules t1l<1n upon the applieation o( good sense and sOllnd eq.uity to the olljel·t and spirit' 'tlf tHe eontr-act in the given case.' 4 Kent, Uomm. 132. What i!> needed is tllltt the deed, on its face.' contain a reservation, or declare a,specilicpurpose for wh,dltLe land wali conveyed, and from whieh the reservatIon may Le implied. J. t in.. Adams v. Logon Co., 11 Ill. 336. Of course, the mere expression of a purpose will not, of and by itself, debase a fee." Sfile.a!so, Kirk v. King, ,3 Pa. St. 436; Scheetz v. Fitzwater, 5 Pat St. 126,;,('4mjlbell V. City oj Kan8a8, 102 Mo. 326, 13 S. W. Rep. 897, and . The quitdain;l deed of Young, reading the act :of 1867 into the clause limiting the powers of the villagecouncil,shows very clearly the .of the grantor to limit the effect of the grant to the interest enjoy'ed hy tl:Jepublic,under,his lather's dedication, and debases the tee to thAt extent. .It· followa .thflt the lawful ahandonment of the burying by the city cou nci.:l , and the impossibility of further user as such, caused a reverter of.the tee to Young" and a judgment of ouster must be in his the the action, for rnesne:vrofits; the;pluintiff is, in view of the plea ot tbestatute of lim,ltatipus.(mlyelltitiIJ'\i ito recover the rental value of the property from a tiIne tour bejol!e the. bringing of the action. Sec-

CANTON S'J]EELRP,OFING CO·. V;,KANNEBERG.

699

tion 4982, Rev. St. Ohio. The action was begun ,July 9. 1889. The rental value of lot No. 96 will be fixed at $1,000 a year, and the amount of recovery for which judgmetlt must be entered will be the rental value from July 9, 1885, to the date of entering judgment.

CANTON STEEL ROOFtNG

Co.

11. KANNEBERG

d al.

(Circuit CQurt, N. D. Ohio, E. D. MaY,1892.) 1.
PATENTS FOR INVENTioNS-PARTIAL ASSIGNMENT.

In a suit for infringement it was stipulated that the patent in snit "is owned by the complainant, except tbecounty of Knox, Ohio." Held, that even if this be taken to mean that there had been, not a license merely, but.a complete assignment of the monopoly in Knox county, plaintiff still retained full title with that exception. and could sue for infringement elsewhere, without joining the assignee for Knox county all a party plaintiff. ,
'.A. failure to prove actual infringement beforetbe fUtn,:t of tbe bill, altbough such is averred in tile bill, doeB not requiretbe dism issalof the pill as prematurely brougbt, or prevent a decree for all,. injunction and an accounting of profits and damages for infringementssubse<J,uent to the filing of the bill and before decree, if th,e bill also avers anticipated prays for injunctioll and general relief; for the right to injunction rests entirely upon antic!J'lated infringements, and the rlgbt to recover damages for infringement between the tiling of the bill and the final injunction is incidental to,the injunction, and necessary to make the remedy complete.

.'

.

2. SAME:':"b.rdNOTION-AcCOUNTJNG.

'3.

Letters patent No. 188.079, .issued March 6, 1877, to Henry W. Bmith,for an im. provement in sheet metal roofing, comprises a means for making a water·tight Joint, and for securing the eheets firmly to the roof boards. This is done by means of an anchor piece of sheet metal; rectangular in form and bent at right !lngles, so that when one part is nailed· t()the roof the other stands upright. The.adjoining sheets of roofing, when laid in position; have' 'Wright flanges of unequal height, the anabar piece being them. Tbe vertical portiq, of the anell!), piece is split centrally, and one thereof is folded down over the shorter fiange. On the higher flange a hem is turned down so as to embrace therop of the other leg, and then these parts are folded down over the. Shorter flange and anchor piece, thus completing a jointof six or seven thicknesses of metal ,All these elements are old, and the claim is for a l'ombination, Hdd, that the patent ill valid, and not anticipated by the Boesch or the. Diehl patents, (No. 2,850, issued March 12, 1842, and No. 99,656, issued February 8, 1870,) both of which, while resembling it in the split anchor and flanges of unequal height, require the folding of several thicknesses of metal at once; or by the .TrisllllJr & Sliewart patent, (No. 15,988, issued. Octobel' 28. 1856,) which has a solid, anchor with a scroll, which fits into a similar scroll in the upper flang'e, while the sctoll of the lower flange is inserted thereunder, thus forming a tubular joint. Complainant's patent is infringed by the device made under letters patent No 403,844, issued May 21, 1889,in Which a tongue is punched out of the central portion of the and bent over in such manner as to embrace the lower flange, while the entire top Of the anchor is embraced by the hem of the 'higher flange, and is then folded over the lower flange. The two devices operate on the same principle, and the fact .that the entire width of the anchor is applied to holding down the sheet with the higher 'flange is immaterial, it not appearing that the one leg of complainant's device was not entirely sufllcient for that'purpose.

METAL RooFING.

·· SAME-INFRINGEMENT.

'C. and William Kanneberg, doing'business as the Kaimeberg Roofing

In Equity.

Bill by the Canton Steel Roofing Company against Alvin

'Company t to restrain infringement, and for an accounting, as to letters patent No, 188,079. issued March 6, 1877, to Henry W. Smith, for an improvement in sheet roofing. Decree for complainant.