majority">Bigelow, J.

The defendants in the present case seek to justify the alleged trespass on two grounds. The first is, by proof of title in the town of Pepperell to the common and burying-ground in question, with its appurtenances, and a license from said town to enter thereon and do the acts complained of. The second is, by evidence of ownership or right in a tomb in said ground, vested in the mother of one of the defendants, as one of the heirs of Jonas S. Varnum, and a permission or authority from her to open said tomb, for the purpose of depositing therein the body of a deceased son.

In support of the first-named ground, a great mass of evidence has been introduced by the parties, concerning the organization of the first parish in Pepperell, and the incorporation of said town, and respecting the origin and uses of the common on which the meeting-house of said parish is situated. *213and from which the burying-ground was originally taken • and set apart. But as the facts most important and decisive in the determination of the main question of title to the common, can be ascertained only by reference to a period of time comparatively remote, the case on this point is necessarily involved in some obscurity and doubt. The lapse of more than a century has obliterated landmarks, destroyed memorials and documents, and rendered records uncertain and difficult of interpretation. The only mode under such circumstances, of determining the rights of parties to the property in dispute, is by having recourse to those presumptions and inferences, which courts of law are authorized to make in the absence of more direct and positive proofs.

The tract of land now forming the principal part of the town of Pepperell, was organized and established as the west parish of the town of Groton, in the year 1742, and under the authority of the general court of the province, a place was designated for the erection of a meeting-house thereon, in 1744. Immediately after this, a. meeting-house was erected, and prepared for occupancy early in the year 1745. On the 12th of April, 1753, eleven years subsequent to the organization of the parish, and eight years after the erection of a meeting-house, the second precinct in the town of Groton was incorporated into a separate district by the name of Pepperell, with all the powers and immunities of towns, except the right of sending a representative to the general court. From this period, the territory with its inhabitants, which had been pre viously called the second precinct in the town of Groton, or Groton West Parish, having a character and organization exclusively parochial, became a municipal corporation, also uniting in one body corporate the powers and privileges of towns and parishes. Prior to this union, however, it appears that on the 20th of November, 1746, Thomas Tarbell conveyed bo William Farnsworth forty-three and one fourth acres of land in Groton, by deed, in which there is this clause: “ always excepting and reserving two acres to be taken out in a regular form, where the meeting-house now stands, in the west parish in said town, as the said Tarbell shall order.” No *214deed of these two acres from Tarbell or any other person, can be found, nor is there any record thereof; but the language of the reservation seems quite significant. It indicates very clearly an intention to set apart the small tract thus excepted out of the grant, to some special purpose. Its location in the immediate vicinity of the meeting-house, the regularity of its form, and the well known practice at that early period, in the various towns in this commonwealth, of reserving pieces of 'and of similar situation for certain parochial or public uses, tend strongly to the inference that the land thus reserved was intended for like purposes. That this intention was carried into effect is manifest from the fact that the original common and burying-ground in the vicinity of the meeting-house in the first parish, correspond in size, shape and situation, with the tract reserved in said deed, and that there is no other piece of land in that vicinity, where a similar correspondence can be found.

We are then brought directly to the inquiry concerning the title to this piece of land, which was thus early appropriated to certain public uses. As there is no deed of the premises to be found, either to the town or parish, we are necessarily driven to the presumption of a grant to one of them arising from long continued possession and use. The evidence of possession and enjoyment, subsequent to the incorporation of the district in 1753, whereby the parish and town became one body corporate, possessed of parochial and municipal powers, can furnish no aid in determining whether the title was in one or the other. The possession being concurrent, and equally according to the title, whether vested in the town or parish, affords no presumption of grant in favor of either, considered as two separate and distinct bodies. We must therefore look to the period preceding the establishment of the district as a municipality, to see whether there is evidence of possession in the parish from which a presumption of title can be raised. The rule is well settled that where a grant is to be inferred from long continued possession of property, the presumption is that the grant was made at the earliest time to which the nroof carries back that possession. The reason for this is *215obvious. Possession, in the absence of proof of a higher nature, being evidence of title, is always presumed to have been in accordance therewith. There being in this case no direct and positive proof of grant, and it being necessary to resort to evidence from which such grant may be properly presumed, if it appears that the parish were in possession of the premises, exercising acts of ownership, before the incorporation of the district, then, upon the principle already stated, the presumption would be that the grant was originally to the parish, and passed, upon the incorporation of the district, to one united corporation of town and parish.

Upon reference to that portion of the evidence in the case which relates to the period which intervened between the setting off of the west parish in Groton, in 1742, and the incorporation of the district of Pepperell, in 1753, being an interval of eleven years, it will be found that there are facts and circumstances to warrant the inference of a possession by the parish of the premises in controversy. We start with the fact of the erection of a meeting-house, upon land of which there is no deed to the parish. This shows quite conclusively that the parish had acquired a title to some land there as early as 1746. It is certainly evidence sufficient to raise a presumption of a grant of the land on which the house was erected, and of the usual and necessary approaches and appurtenances thereto. Then we have the fact, already alluded to in another connection, of the reservation in Tarbell’s deed in 1746, more than six years prior to the incorporation of the district, of land in the immediate .vicinity of the meeting-house, apparently designed for the use to which it was subsequently appropriated. That the two acres were thus set apart, not only before the incorporation of the district, but, so far as the evidence shows, before the establishment of any new district there was contemplated, and that this was done about the time of the erection of the meeting-house, and in immediate connection therewith, primá facie indicates that they were originally designed for parish purposes. But the most decisive evidence on this point is found in two votes of the district, one passed at the first meeting of the district after its incorporation, viz; *216in May, 1753, and the other passed in March, 1755. By these it distinctly appears that in March, 1753, the parish, then acting solely as such, passed certain votes “ concerning the burying place,” and providing for the erection of fences to enclose it. These votes of the district are strong evidence of two important facts; first, that a piece of land had been, prior to the incorporation of the district, set apart and appropriated for public uses, and secondly, that the parish were then in possession thereof, exercising acts of ownership. As the common and burying-place undoubtedly had their origin from the same source of title, it would seem to follow, that the earlier possession of the entire tract was in the parish, and therefore the presumption of grant, founded on possession, is carried back to a period prior to the incorporation of the district, and leads to the inference that it must have been made to the parish.

This result will enable us to arrive at a ready solution of the respective rights of the town and parish to the premises in controversy, and to determine the questions presented by the parties to this suit. The principles of law applicable to property of this description, originally granted to a parish or town, and held by them in their capacity of a united corporation of town and parish, have so often been the subject of judicial consideration and determination in this commonwealth, as to render any examination or statement of them in detail unnecessary. It may now be taken as well-settled law here, that property granted originally to a parish, would, upon the incorporation of the parish into a town, pass to and be held by the new corporation. It would then so remain, until by the creation of a new parish in the town, it became separated into two distinct corporations, having diverse and independent powers. The property would then revert to the parish, to which it was originally granted, unless in the mean time it had been appropriated, as it might well be, to the use of the town in its municipal capacity, by a vote or other act of the one united corporation. The mere use of the land by the town for occasional and temporary purposes, whilst it remained vested in one corporation, would confer no absolute *217right or title to it upon the town after the separation; nor could any claim of right, by way of adverse use and possession, arise in favor of the town, whilst the two bodies were united. So long as they continued blended together, it was impossible for one to gain any rights adversely to the other. But it was competent for the corporation, while exercising the functions both of a town and parish, to determine how property belonging to it should be appropriated and used. Although the land in controversy in the present case was originally granted to the parish, there is nothing from which it can be inferred that there was any restriction or limitation annexed to its use. The presumption is, that it was a grant in fee. It therefore depended on the will of the corporation in which the title was vested, to appropriate and direct its use, from time to time, as their own views of interest and convenience might require. This right would continue till the two corporations became disunited. Upon the happening of that event, the rights of the two corporations would become fixed, without any power in one to change the rights of the other thereto. An appropriation to a municipal or parochial use during the union, would determine whether it was town or parish property at the time of the formation of a new parish, and the consequent separation of the town and original parish into two distinct corporations. Such appropriation, when distinctly made, would be equivalent to a grant of the property to a specific use. It might be made, as it usually was in such cases, by a vote of the united corporations, which, if in force at the time of the separation, would be decisive of the title to the property so appropriated, or it might be shown by the erection of structures of a permanent character made during the union, and so long continued as to indicate clearly the dedication of the land to some particular purpose. If, for instance, a town-house, a school-house, or a gun-house, were thus built, it would be an appropriation of the land on which they stood, with that which was appurtenant and necessary for its enjoyment, to the town, because these are manifestly and solely municipal uses, with which a parish has no concern ; but the erection of a meeting-house, a vestry, or horse-*218sheds near the meeting-house, would be an appropriation of the land, and of so much as might be enclosed and connected with the buildings, or if left open, reasonably incident, from necessity or convenience, to purposes exclusively parochial. When, therefore, the new parish was incorporated, in the town of Pepperell, in 1831, the residue of the parish not included in the new corporation, became successors of the town in all its parochial rights, powers and estate, and also successors of ■the original parish to which the town succeeded, upon its incorporation in 1753. It follows that it thus became entitled to all property appropriated to parish uses, and to all the original property of the old parish not previously appropriated and devoted to municipal purposes by the united corporation; and that all property which had been, before that time, devoted to town uses, either by express vote, or permanent erection and long continued use, had thereby ceased to be the oroperty of the parish, and become vested in the town. Medford v. Pratt, 4 Pick. 222; Milton v. Milton, 10 Pick. 447; Shrewsbury v. Smith, 14 Pick. 297; Medford v. Medford, 21 Pick. 199.

The evidence in the present case shows that, from the earliest period, a portion of the land forming part of the common was appropriated for a burying-ground; and that the use of it for this purpose continued during the entire period of the union of the town and parish as one corporation, and since their separation, to the present time. This appropriation was made by various votes of the town, providing for its enclosure, by the erection of tombs therein from time to time, under the authority from the town and its officers, and by the use of it for a long series of years for this distinct purpose. Although in early times the establishment, care, and control of burial-grounds, like the support of schools, might have been partly a parochial and partly a municipal duty, yet before the erection of a new parish in the town of Pepperell, in 1831, they were regarded as appertaining rather to towns than to parishes. As towns and parishes had become separated throughout the commonwealth, by the incorporation of new parishes therein, the charge of burial-grounds had almost uniformly devolved *219on towns. The statute of 1814, c, 175, had placed them in some measure under the control of the selectmen and the boards of health of towns, as being matters of municipal concern, and the enactment of Rev. Sts. c. 15, § 12, shows that in 1836, they were deemed to be among the leading purposes for which towns were expressly authorized to raise money. That the burial-ground in question was regarded by the first parish in Pepperell, as well as by the town, as belonging to the town, and subject to its exclusive care and control, is manifest from the evidence in this case, which shows that after the separation in 1831, the parish exercised no charge over it whatever, but that the care of it was expressly assumed by the town, by a formal vote, and the town has since repaired its fences, enlarged its dimensions, and regulated its use. Under such circumstances and after so long an acquiescence, it seems to us that there can be no doubt of its appropriation to a municipal purpose, and of the right of the town thereto. We are therefore of the opinion that the property in the burying-ground, at the time of the separation, as it was then enclosed and used, together with a convenient right of access to it over parts of the ground called the common, as then appropriated and used for that purpose, must be regarded as having been irrevocably devoted to a municipal purpose, and thereby to have become vested in the town. If this be so, then it follows that the defendants, having acted under the authority and express license of the town, and for the purpose of removing an obstruction to a proper access to a part of the burying-ground as it had been used before, and at the time of the separation, were guilty of no trespass, and are not liable in this action.

But there is another view of the case, leading to the same result, equally satisfactory and decisive. The vote of May 7, 1810, by which Jonas S. Varnum and others had liberty to build two or more tombs in the graveyard, under the direction of the selectmen, and the erection of said tombs, in pursuance of such directions, operated as a valid grant by vote, to erect and use a tomb by said Varnum, with a right of access thereto, as the same was then constructed and subsequently used *220Damon v. Granby, 2 Pick. 345, 351. It would be absurd and contrary to all rules of construction, to hold that this was a grant of a mere right to build a tomb, without the necessary right appurtenant thereto, of access to it over the common, and of entering it in the mode provided under the authority and direction of the agents of the town. That the tomb was so built, with its only opening on the common, and so remained from 1810 to the separation in 1831, estops the parish as successors of the town, to aver that the tomb was not built in conformity with the grant.

By virtue therefore of this grant, and a possession under it of upwards'of twenty years prior to the separation of the town and .parish, the right to the use of the tomb, and to have access to it on all proper occasion, in the mode in which the entrance thereto was originally constructed, became vested in said Varnum and his heirs, by a title derived directly from the united corporation, comprehending the parish as well as the town.

There can be no doubt, therefore, of the right of the mother of the defendant, Ames, or of any person acting under a license or authority from her, to enter the tomb for the purpose of placing there the body of her deceased son, and to remove all obstructions which would prevent or hinder the rites of sepulture from being there performed in a decent and becoming manner. The learned counsel for the plaintiff, in their argument, have not denied the right of the mother to enter and use the tomb, under this grant, but have put this part of their case mainly upon the want of authority on the part of the defendants to act in the mother’s behalf. But there are cases, and this seems to us to be one of them, where the law will imply a license, in the absence of any proof of direct authority, from the necessities of individuals and from the usages of the community. Thus it has been held that the entry upon another’s close, or into his house, at usual and reasonable hours, and in a customary manner, for any of the common purposes of life, cannot be regarded as a trespass. In like manner and for a like reason, there are cases where the law will imply that money was paid at the request of a *221party, although the payment was made without the knowledge or assent of the party charged therewith. Upon this principle, it has been held, that where a husband has gone abroad leaving his wife, who died in his absence, a third person who voluntarily pays the expenses of her funeral, suitably to the rank and fortunes of the husband, though without his assent, may recover of him the money so paid. 2 Saunders Pl. & Ev. (2d edit.) 410; T. Raym. 260; Jenkins v. Tucker, 1 H. Black. 30; Rogers v. Price, 3 Younge & Jervis, 28. A learned judge has said in a case of this character, and in language which is peculiarly applicable to the case at bar, that “ the common principles of decency and humanity, the common impulses of our nature, would direct every one, as a preliminary step, to provide a decent funeral, and to do that which was immediately necessary upon the subject.” If such be the rule as applicable to transactions of this nature between strangers, it applies with double force where the relation between the parties is such as is shown to have existed in this case. It cannot be that it is necessary to produce formal proof of authority from a mother to a son to do aE that was necessary and proper for the burial of her deceased son in the famüy tomb. The law wiE imply a license from the nature and exigencies of the case, the relation of the parties, and the weE-established usages of a civilized and Christian community.

Judgment for the defendants.

Citation profile

How this case has been treated — in progress