A lot of ground had, in the original plan of an addition to
Georgetown, been marked "for the Lutheran Church," and by the
German Lutherans of the place, had been used as a place of burial
from the dedication, and who had erected a schoolhouse on it, but
no church exercising acts of protection and ownership over it at
some periods by committees appointed by the German Lutherans, the
original owner acquiescing in the same. This may be considered as a
dedication of the lot to public and pious uses, and although the
German Lutherans were not incorporated, nor were there any persons
who, as trustees, could hold the property, the appropriation was
also valid under the bill of rights of Maryland. The bill of
rights, to this extent at least, recognizes the doctrines of the
Statute of Elizabeth for charitable uses, under which it is well
known that such uses would be upheld although there was no specific
grantee or trustee. This might at all times have been enforced as a
charitable and pious use through the intervention of the government
as
parens patria by its attorney general or other law
officer. It was originally consecrated for a religious purpose. It
has become a depository of the dead, and it cannot now be resumed
by the heirs of the donor.
If the complainants in the circuit court were proved to be the
regularly appointed committee of a voluntary society of Lutherans
in actual possession of the premises, and acting by their direction
to prevent a disturbance of that possession, under the
circumstances of this case, there does not appear to be a serious
objection to their right to maintain a suit for a perpetual
injunction against the heirs of the donor, who sought to regain the
property and to disturb their possession.
The only difficulty which presents itself upon the question
whether the complainants in the circuit court have shown in
themselves sufficient authority to maintain their suit is that it
is not evidenced by any formal vote or writing. If it were
necessary to decide the case on this point, under all the
circumstances it might be fairly presumed. But this is not
necessary, because this is one of those cases in which certain
persons belonging to a voluntary society and having a common
interest may sue in behalf of themselves and others having the like
interests as part of the same society for purposes common to all
and beneficial to all.
The appellees filed their bill in the circuit court against
Charles A. Beatty and John T. Ritchie, which states in substance
that the late Colonel Charles Beatty and George Frazier Hawkins, in
the year 1769, laid out on lands belonging
Page 27 U. S. 567
to them, and adjoining the Town of Georgetown, a certain town
known by the name of "Beatty and Hawkins' addition to Georgetown,"
the lots whereof were laid down and distinguished on a plot and
disposed of by lottery. That Beatty, in laying out the said
addition, distinguished and set apart a certain lot or portion of
ground in the said addition for the sole use and benefit of the
German Lutheran Church, declaring the same to be their absolute
right and property, to be held by them for religious purposes and
the use of said congregation and caused the same to be so entered
and designated in the plot of said addition, as now appears by the
plot and papers on record in the clerk's office for Washington, to
which they beg leave to refer, which plot and papers were recorded
under authority of the Act of Maryland, 1796, ch. 54, which lot is
described in the said plot of said addition as the German Lutheran
Church lot, and also in the general plot of the Town of Georgetown
and its additions, deposited in the office of the clerk of the
Corporation of Georgetown. That soon after the lots in the said
addition were laid off and disposed of as aforesaid, the said lot
was taken possession of by the said German Lutherans and was
enclosed and a church erected thereon, and hath been kept and held
by them ever since during a period, as they believe, of upwards of
fifty years, and hath been used by them as a burying ground for the
members of the said church, with the avowed intention of building
thereon another church or place of worship, the building first
erected being decayed, whenever their funds would enable them to do
so. That during all this period, neither their possession nor title
hath ever been questioned, and the lot has been exempted from
taxation at their request by the Corporation of Georgetown as being
church property. That Charles Beatty died about sixteen years ago,
and without having made any conveyance of the said lot, and that
Charles A. Beatty is his heir at law. They therefore pray that he
may be made defendant and be compelled to convey the title to the
complainants in trust for the German Lutheran Church.
They further state that the defendant John T. Ritchie, without
any pretense of title, disputes the title of complainants
Page 27 U. S. 568
and their right of possession, and has undertaken to enter on
part of the lot and to remove tombstones, &c., and they fear
that he means to dispossess them, wherefore they pray subpoena,
&c., and that they may be quieted in their possession of said
lot and that the defendant, Ritchie, may be enjoined from
disturbing their possession, and for general relief.
The answer of the defendants in the court below admits that
Charles Beatty, deceased, did designate a lot in his addition to
Georgetown by inscribing on the plot thereof these words, "for the
Lutheran Church;" that they always understood and believed that he
meant by that inscription to manifest an intention to appropriate
that lot to the use of the Lutherans, provided they would build on
it within a reasonable time a house of public worship, which would
conduce to diffuse piety, to enhance the value of his property, and
to adorn his addition to Georgetown. But they deny that this
inscription was ever meant or could be interpreted to be a contract
with the Lutheran Church to convey to that body the property in
question. That the writing itself could not operate as a
conveyance, and there was no consideration to sustain it as a
contract. They deny that Charles Beatty ever declared the lot in
question to be the absolute right and property of the Lutherans, or
did in any manner by means thereof hold out inducements to them or
the public to purchase tickets in the pretended lottery mentioned
in the bill or to purchase and improve lots in that part of the
town. They aver that no church had ever been built on it, and that
its occupation by graves and a schoolhouse was a use of it by no
means beneficial to defendants or him under whom they claimed.
The answer denies the possession averred in the bill and also
that there ever was an organized congregation of German Lutherans
in Georgetown.
It avers also that the lot in question has remained unenclosed
for at least three-fourths of the time since it became a part of
Georgetown, and that the enclosures which occasionally surrounded
it were not erected by the complainants nor those whom they pretend
to represent. The respondents
Page 27 U. S. 569
admit that the lot was used as a burying ground, but aver that
it was thus used by Beatty's permission, and not exclusively by the
Lutherans, but the public generally. But they further say that if
the Lutherans had enjoyed the possession alleged in the
complainants' bill, they might and should have enforced the rights
thereby acquired at law, and ought not to have come into equity for
a remedy. Finally, confessing that they had resumed possession of
the property, they deny the authority of the complainants to act in
behalf of the pretended German Lutheran Church, and pray the same
benefit of these defenses as if they had been urged by plea to the
bill.
The plaintiffs amended their bill by stating, the German
Lutheran Church mentioned in their bill was composed of the members
of the German Lutheran Church in Georgetown, duly organized as
such; "that the lot was set apart by C. Beatty," from and out of
that "part of the said land, composing said addition," of which he,
the said Beatty, was seized.
"The said Beatty, by the said designation, declaration, and
setting apart, holding out to the public, and to the German
Lutherans particularly, inducements as well to purchase tickets in
a lottery, by which the said lots were disposed of, as to purchase
and improve that part of the town in other ways. And thereby
meaning to transfer to the said German Lutherans, as soon as they
should organize themselves into a congregation or church, all his
right to said lot in fee, to be used for the religious purpose of
such congregation or church, and thereby declaring that intention.
That they organized themselves into a congregation or church and
erected a church or house of worship on the said lot."
That the complainants and the congregation for whom they act
have called upon C. A. Beatty and required a conveyance according
to the promise and declared intent of the said Charles Beatty,
deceased; that upon organizing the church or congregation
aforesaid, certain officers, called a committee, were appointed to
take charge of the concerns of the church, which appointments were
from time to time made and renewed, and that complainants were
appointed in 1824, and have continued to hold such appointment ever
since.
Page 27 U. S. 570
To those amendments the defendants answered and denied all the
allegations in the amended bill.
It was in evidence that soon after this lot was thus set apart
for the Lutherans, it was, with Colonel Beatty's permission, taken
possession of by certain persons of that sect in Georgetown, who
had a log house erected on it, which was called a church and used
as such frequently, and also as a schoolhouse by the German
Lutherans. That in the year 1796, a German minister came from
Philadelphia and was employed by them, and preached in this house
for three months, being employed and paid by the German Lutherans
of Georgetown, and about the year 1799, the congregation of German
Lutherans, of which Travers, the witness in this cause, was one,
employed a German minister who officiated in said house for about
nine months. Though divine service was frequently administered in
that building, there was at no other periods than those just
mentioned a stationed preacher who ministered to a congregation in
regular attendance there except a Mr. Brooke, who was an Episcopal
clergyman and who, Dr. Balch testifies, had possession of that
building as a church in 1779. In the same or the following year, a
steeple was erected on the said house, in which a bell was hung at
the expense and by the direction of the German Lutherans of
Georgetown. This building some years afterwards went to decay, and
no church has been since rebuilt on the lot, though efforts have
been since made for that purpose, and as late as 1823 a
considerable subscription was raised, but not sufficient for the
object.
During the whole period from 1769 to the bringing of this suit,
the lot in question was generally under enclosures, put up at the
expense of the Lutherans of Georgetown and under the care and
custody of a committee appointed by them. It has been continually
so enclosed for more than twenty years before the entry and claim
set up by the defendants in this suit. The said lot has been also
used by the Germans as a burying ground from the year 1769 till a
short time before the bringing this suit, and has been called and
known as the Dutch burying ground, and one of the witnesses,
Styles, acted as sexton under the orders of the committee of
the
Page 27 U. S. 571
congregation. It does not appear that the German Lutherans in
Georgetown ever were incorporated by law as a religious
society.
It also appeared from the evidence that from the year 1769 till
within a month or two before the bringing this suit, no claim to
the possession or property in the lot now in dispute was ever set
up by Col. Charles Beatty or by either of the defendants, but on
the contrary, Col. Charles Beatty, up to the time of his death,
always declared it to be the property of the German Lutherans of
Georgetown; his administrator, Abner Ritchie, who, it is stated,
sold all his lots in said addition left by him at his death, never
claimed or offered to sell the lot in question as part of his
property; that his son and heir the defendant, Charles A. Beatty,
has repeated the same declarations to a witness, (Mountz) a few
years before this suit; he expressed
"his surprise that the Germans had been so indifferent about
getting their title to this property, as he was always ready and
willing to give them a deed for it."
A witness, Mr. Rhaeffer, testified that in 1823 the defendant
Beatty, in his presence, declared, "that the lot aforesaid was the
property of the Lutherans, and that he was very anxious to make
them a deed." He also confirmed the evidence of the other
witnesses.
It also appeared from the evidence that since the year 1769, the
said lot has never been assessed for taxes to Col. Beatty or his
heirs, nor have any taxes ever been paid by them. That it has
always been recognized by the Corporation of Georgetown, since its
charter in 1789, as the church property of the Lutherans, and as
such has been exempted from taxation with other church property in
the town.
It was in evidence that the Lutherans of Georgetown always had a
church committee to act for them and to take charge and custody of
the lot in question, and the appellees constituted that committee
from 1816 till the bringing this suit and to the present time. In
virtue of that appointment, when Ritchie entered on the premises
and threw down the fence and tombstones, they filed this bill for a
conveyance
Page 27 U. S. 572
in fee of the lot to complainants as trustees for said church,
to be quieted in the possession thereof, and for an injunction to
restrain the appellants from disturbing their possession, or
trespassing on said lot.
The circuit court decreed a perpetual injunction against the
defendants, the appellants, who, by their appeal, brought the case
before this Court.
Page 27 U. S. 578
MR. JUSTICE STORY delivered the opinion of the Court.
Georgetown was erected into a town by an Act of the Legislature
of Maryland passed in 1751, ch. 25. By subsequent acts, additions
were made to the territorial limits of the town, and the town was
created a corporation, with the usual municipal officers, by an Act
of the Maryland legislature passed in 1789, ch. 23. The charter of
incorporation has been subsequently amended by Congress by various
acts passed upon the subject since the cession.
In the year 1769, Charles Beatty and George F. Hawkins laid out
a town, known by the name of Beatty and Hawkins' addition to
Georgetown and which is now included within its corporate limits.
The lots of this addition were disposed
Page 27 U. S. 579
of by way of lottery under the direction of commissioners
appointed to lay out the same and conduct the drawing of the
lottery. The books of the lottery and the plan of the lots and a
connected survey thereof were afterwards, by act passed in 1796,
ch. 54, ordered to be recorded in the clerk's office for the
Territory of Columbia, and copies thereof to be good evidence in
all courts of law and equity in the state. Upon the original plan
so recorded one lot was marked out and inscribed with these words,
"for the Lutheran Church," and this lot was in fact part of the
land of which Charles Beatty was seized.
The bill was brought up by the original plaintiffs, alleging
themselves to be trustees and agents for the German Lutheran Church
composed of the members of the German Lutheran Church of
Georgetown, duly organized as such, in behalf of themselves and the
members of the said church. It charges the laying out of the lot in
question for the sole use and benefit of the Lutheran Church, to be
held by them for religious purposes and the use of the
congregation, as above-mentioned. That soon afterwards, the lot was
taken possession of by the said German Lutherans in Georgetown, who
organized themselves into a church or congregation and erected a
church or house of worship thereon, and the lot was enclosed by
them and a church erected thereon, and hath been kept and held by
them during a period of fifty years, and hath been used as a
burying ground for the members of the church with the avowed
intention of building thereon another church or place of worship,
the first building erected thereon being decayed, whenever their
funds would enable them so to do. That during all this period,
their possession has never been questioned, and the lot has been
exempted from taxation as property set apart for a religious
purpose. It further charges that upon the organization of the
church or congregation, certain officers, called a committee and
trustees, were appointed to take care of the said church, which
appointments have been from time to time renewed; that in 1824 the
plaintiffs were reappointed as such, having been so appointed at
former times. It further charges that Charles Beatty died about
sixteen years ago,
Page 27 U. S. 580
without having made any conveyance of the said lot, and that
Charles A. Beatty, the defendant, is his heir and has the title by
descent, and prays that he may be compelled to convey it to them.
It further charges that Ritchie, the other defendant, has
unwarrantably disputed their title and has entered upon the lot and
removed some of the tombstones erected thereon, and means to
dispossess the plaintiffs and to remove the tombstones and graves.
The bill therefore prays that they may be quieted in their
possession and that a writ of injunction may issue, and for further
relief.
The defendants put in a joint answer. They admitted that the lot
was so marked in the plot as the bill states, and that it was
Charles Beatty's intention to appropriate the same to the use of
the Lutheran congregation, provided they would build thereon within
a reasonable time a house of public worship. They deny that the
German Lutherans were ever organized, as stated in the bill, or
that any such church has been built, or that there has been any
such possession or enclosure as the bill asserts, or that Charles
Beatty ever made any conveyance of the property to transfer his
title. They admit that the lot has been used as a graveyard, but
not exclusively appropriated to the use of the Lutheran
congregation. They admit that a building was erected thereon, but
that it was used as a schoolhouse. They admit that the defendant,
Beatty, is heir at law, and as such, that he claims the lot in
question, and has authorized the defendant, Ritchie, to take
possession thereof. They deny all the equity in the bill, as well
as the authority of the plaintiffs to sue, declaring them to be
mere volunteers and demanding proof of their authority, &c.
The general replication was filed, and the cause came on for a
hearing upon the bill, answer, exhibits and depositions, and the
court decreed a perpetual injunction against the defendants, with
costs. The appeal is brought from that decree.
Upon examining the evidence, it appears to us that the material
allegations of the bill are satisfactorily established. It is
proved that, shortly after the appropriation, and more
Page 27 U. S. 581
than fifty years ago, the Lutherans of Georgetown proceeded to
erect a log house on the lot which was used as a church for public
worship by that denomination of Christians, and was also
occasionally and at different times since used as a schoolhouse
under their direction. That at a much later period, a steeple and
bell were added to the building; that the land was used as a
churchyard; that a sexton appointed by Lutherans had the direction
of it; that more than half of the lot is covered with graves, and
others as well as Lutherans have been buried there; that the
Lutherans have caused the lot to be enclosed from time to time as
the fences fell into decay, and procured subscriptions for that
purpose; that the possession of the Lutherans, in the manner in
which it was exercised over the lot by erecting a house, by public
worship, by enclosing the ground, and by burials, was never
questioned by Charles Beatty in his lifetime or in any manner
disturbed until a short period before the commencement of the
present suit. That Charles Beatty in his lifetime constantly avowed
that the lot was appropriated for the Lutherans and that they were
entitled to it.
The Lutherans have constituted but a small number in the Town of
Georgetown; they have not been able, therefore, to maintain public
worship constantly in the house so erected during the whole period,
and sometimes it has been intermitted for a considerable length of
time. But efforts have been constantly made as far as practicable
to keep together a congregation, to use the means of divine
worship, and to support public preaching. The house, however, in
consequence of inevitable decay, fell down some time ago, the exact
period of which, however, does not appear, but it seems to have
been more than forty years after its first erection. Efforts have
since been made to rebuild it, but hitherto they have not been
successful.
The Lutherans in Georgetown, who have possessed the lot in
question, are not and never have been incorporated as a religious
society. The congregation has consisted of a voluntary society,
acting in its general arrangement by committees and trustees chosen
from time to time by the Lutherans belonging to it. There do not
appear to have been
Page 27 U. S. 582
any formal records kept of their proceedings, and there have
been periods of considerable intermission in their appointment and
action. There is no other proof that the plaintiffs are a committee
of the congregation than what arises from the statement of
witnesses that they were so chosen by a meeting of Lutherans and
that their appointment has always been acquiesced in by the
Lutherans, and they have assumed to act for them without any
question of their authority; that they are themselves Lutherans
living in Georgetown, and forming a part of the voluntary society
is not disputed.
There is decisive evidence also that the defendant Beatty has,
since the decease of his father, repeatedly admitted the claim of
the Lutherans to the lot, and his willingness that it should remain
for them, as it had been originally appropriated. No assertion of
ownership was ever made by him until the acts were committed which
form the gravamen of the present bill.
Such are the material facts, and the principal questions arising
upon this posture of the case are first, whether the title to the
lot in question ever passed from Charles Beatty, so far at least as
to amount to a perpetual appropriation of it to the use of the
Lutheran Church or to the pious uses to which it has been in fact
appropriated, and secondly, if so, whether it is competent for the
plaintiffs to maintain the present bill.
As to the first question, it is not disputed that Charles Beatty
did originally intend that this lot should be appropriated for the
use of a Lutheran church in the town laid off by him. But as there
was not at that time any church, either corporate or
unincorporated, of that denomination in that town, there was no
grantee capable of taking the same immediately by grant. Nor can
any presumption of a grant arise from the subsequent lapse of time,
since there never has been any such incorporated Lutheran church
there capable of taking the donation. If, therefore, it were
necessary that there should be a grantee legally capable of taking,
in order to support the donation in this case, it would be utterly
void at law, and the land might be resumed at
Page 27 U. S. 583
pleasure. To be sure, if an unincorporated society of Lutherans
had, upon the faith of such donation, built a church thereon with
the consent of Beatty, that might furnish a strong ground why a
court of equity should compel him to convey the same to trustees in
perpetuity for their use, or at least to execute a declaration of
trust that he and his heirs should hold the same for their use. For
such conduct would amount to a contract with the persons so
building the church that he would perfect the donation in their
favor, and a refusal to do it would be a fraud upon them which a
court of equity ought to redress. And if the Town of Georgetown had
been capable of holding such a lot for such uses, there would be no
difficulty in considering the town as the grantee under such
circumstances, since the uses would be of a public and pious nature
beneficial to the inhabitants generally. But it does not appear
that Georgetown, in 1769, or indeed until its incorporation in
1789, was a corporation so as to be capable of holding lands as an
incident to its corporate powers.
If the appropriation, therefore, is to be deemed valid at all,
it must be upon other principles than those which ordinarily apply
between grantor and grantee. And we think it may be supported as a
dedication of the lot to public and pious uses. The bill of rights
of Maryland gives validity to
"any sale, gift, lease, or devise of any quantity of land not
exceeding two acres for a church, meeting or other house of
worship, and for a burying ground, which shall be improved,
enjoyed, or used only for such purpose."
To this extent at least it recognizes the doctrines of the
Statute of Elizabeth for charitable uses, under which it is well
known that such leases would be upheld although there were no
specific grantee or trustee. In the case of
Town of
Pawlet v. Clarke, 9 Cranch 292,
13 U. S. 331,
this Court considered cases of an appropriation or dedication of
property to particular or religious uses as an exception to the
general rule requiring a particular grantee, and like the
dedication of a highway to the public. [
Footnote 1] There
Page 27 U. S. 584
is no pretense to say that the present appropriation was ever
attempted to be withdrawn by Charles Beatty during his lifetime,
and he did not die until about sixteen years ago. On the contrary,
the original plan and appropriation were constantly kept in view by
all the legislative acts passed on the subject of this addition.
The plan was required to be recorded as an evidence of title, and
its incorporation into the limits of Georgetown had reference to
it. We think then it might at all times have been enforced as a
charitable and pious use, through the intervention of the
government as
parens patriae by its attorney general or
other law officer. It was originally consecrated for a religious
purpose, it has become a depository of the dead, and it cannot now
be resumed by the heirs of Charles Beatty.
The next question is as to the competency of the plaintiffs to
maintain the present suit. If they were proved to be the regularly
appointed committee of a voluntary society of Lutherans, in actual
possession of the premises and acting by their direction to prevent
a disturbance of that possession under circumstances like those
stated in the bill, we do not perceive any serious objection to
their right to maintain the suit. It is a case where no action at
law, even if one could be brought by the voluntary society (which
it would be difficult to maintain) would afford an adequate and
complete remedy. This is not the case of a mere private trespass,
but a public nuisance, going to the irreparable injury of the
Georgetown congregation of Lutherans. The property consecrated to
their use by a perpetual servitude or easement is to be taken from
them; the sepulchers of the dead are to be violated; the feelings
of religion and the sentiment of natural affection of the kindred
and friends of the deceased are to be wounded, and the memorials
erected by piety or love to the memory of the good are to be
removed so as to leave no trace of the last home of their ancestry
to those who may visit the spot in future generations. It cannot be
that such acts are to be
Page 27 U. S. 585
redressed by the ordinary process of law. The remedy must be
sought, if at all, in the protecting power of a court of chancery,
operating by its injunction to preserve the repose of the ashes of
the dead and the religious sensibilities of the living.
The only difficulty is whether the plaintiffs have shown in
themselves a sufficient authority, since it is not evidenced by any
formal vote or writing. If it were necessary to decide the case on
this point, we should incline to think that under all the
circumstances it might be fairly presumed. But it is not necessary
to decide the case on this point, because we think it one of those
cases in which certain persons, belonging to a voluntary society
and having a common interest, may sue in behalf of themselves and
others having the like interest as part of the same society for
purposes common to all and beneficial to all. Thus, some of the
parishioners may sue a parson to establish a general modus without
joining all, and some of the members of a voluntary society or
company, when the parties are very numerous, may sue for an account
against others, without joining all. [
Footnote 2]
And upon the whole we are of opinion that the decree of the
circuit court ought to be
Affirmed with costs. [
Footnote 3]
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is considered, ordered, and
decreed by this Court that the decree of the said circuit court in
this cause be and the same is hereby affirmed with costs.
[
Footnote 1]
See also Brown v. Porter, 10 Mass. 93;
Weston v.
Hunt, 2 Mass. 500;
Inhabitants of Shapleigh v.
Gilman, 13 Mass. 190;
Burrard's Case, 12 Jac.C.B., 2
Mod.Ent. 413b.
[
Footnote 2]
Cooper's Eq.Plead. 40, 41; Mitf.Plead. 145.
[
Footnote 3]
"If a layman, by the dissolution of monasteries, hath a
monastery in which there is a church, part of it, and he suffers
the parishioners for a long time to come there to hear divine
service and to use it as a parish church, that shall give a
jurisdiction to the ordinary to order the seats, because that now,
in fact, it becomes the parish church, which before was not subject
to the ordinary."
Adjudged 12 Ja.C.B.;
Buzzard's Vase, 2 Mod.E. 413.
6.
