Boyce v. Kalbaugh

Stewart, J., delivered the opinion of the Court. Upon the final hearing of this case before the Circuit Court for Garrett County, as a Court of equity, a perpe ³³⁶ tual-injunction was granted prohibiting the defendants from excavating, building upon, or otherwise interfering with so much of the lot of ground, described in Exhibit A, as has been heretofore used as. a burial ground. From'that decree.this appeal has been taken. ■ The proof in1 the record is abundant that the parcel of land in controversy included - in'the decree, had been used as a burial ground' by the inhabitants of the village of Bloomington, and no matter what may have been the prior rights of the appellant to the property, they must be held to have been waived, abandoned or subordinated to its public and . pious use as a depository of the dead, with the knowledge and acquiescence of the owner. The notorious use of the property for upwards of twenty years, for such humane purpose as that to which it was appropriated with the acquiescence of the owner, affords presumptive evidence of its dedication as such; and the total inadequacy of any proceeding at law to give full redress for its disturbance, furnishes sufficient ground for the intervention of a Court of equity.

The complainants, who are relatives of the dead deposited therein, may invoke the remedial power of the Court, to prevent the desecration of the ground where repose the ashes of their kindred. The material facts of this case, both as to the subject-matter and the competency of the complainants to maintain their suit, are analogous to the case of Beatty & Richie vs. Kurtz and others, decided