226 
PARK AND CEMETERY, 
Lynn, Mass., Janaary 2, 1899. 
Editor Park and Cemetery : 
Dear Sir: — Our convention at Omaha is numbered with 
the past. We missed there several members who are in the 
habit ot attending, but we hope to see them at New Haven this 
year. Our meetings were very interesting, and of course bene- 
ficial. On our return home we stopped a day in St. Louis, and 
visited the Shaw Botanical Gardens; we were well paid for our 
visit, being fortunate in having the services of a young student 
to show us around. 
As 1 sit in my office looking out upon the snow- clad hills, I 
think what a fitting time to plan the work that will come again 
in a few short weeks, and also to plan and think of the future of 
our association and the good it is destined to do. I have olten 
thought what a pleasing feature it would be at our meetings to 
receive a letter from every member who could not attend, ad- 
vancing some idea, or asking some question, thus taking part in 
the meetings, and encouraging those who are there, by con 
vincing them that, though absent, their interest had not abated 
These winter days, when we cannot work about our grounds, we 
have opportunity to store our minds with useful thoughts. These 
thinking days are as valuable as the working days. If this paper 
meets the eye of any cemetery officials who have never sent 
their superintendent to a convention, please )send them next 
year, and watch them when they get home with their brains 
polished up, and see them bustle about endeavoring to get ou 
of ruts they didn’t know they were in. If there is a superintend 
ent who has not attended because he knows it all, please come 
and get a few new ideas, and subscribe for Park and Ceme- 
tery. 
William Slone, 
Superintendent Pine Grove Cemetery. 
LEGAL. 
LIABILITY FOR CUTTING TREES ON CEMETERY LOT. 
The question of liability in damages for the cutting of trees 
on a cemetery lot was certified to the supreme court of Wiscon- 
sin, in the case of Hollman against the City of Platteville, and a 
decision rendered in November, 1898. In 1845 'he town of Platte- 
ville acquired a tract of land for cemetery purposes, possession 
and control thereof afterwards passing to what is now the city of 
Platteville, said cemetery being within its limits. The cemetery 
was never platted and no deeds or written burial permits were 
ever made to any person. Nor were any rules or regulations 
concerning the cemetery ever made by the authorities in charge; 
and no money was ever paid for the privilege of burial in said 
cemetery, it having always been the custom for persons burying 
dead in the cemetery to select for that purpose'any unoccupied 
ground within the cemetery, without paying therefor. In i866 ; 
the plaintiffs mother was buried in the cemetery, according to 
the foregoing custcm. In 1867, he inclosed the grave of his 
mother and those of two of his sister’s children, previously bur- 
ied, and sufficient ground east of said graves for another row of 
graves, with a fence, and planted four evergreen trees within 
the inclosure. Subsequently, other relatives were buried therein 
Then, after it had remained there for about 20 years, he re- 
moved the fence, and one of the trees was removed by his sister’s 
relatives. But from the time he fenced off the lot he cared for 
and attended the same, and claimed it as a family burial lot. 
In 1894, the city, by its servant, in the course of general im- 
provements of the cemetery, for which money fiad been appro- 
priated by the city, removed the three remaining trees, without 
notice to the plaintiff, and, as the jury found, in the suit he 
brought for damages, to the damage of the lot $50. Was the 
judgment for damages for the removal of said trees supported bv 
the facts above stated? The supreme court answers this question 
in the affirmative . 
As the supreme court views the case, it was unnecessary to 
determine whether the plaintiff had legal title to the lot or not, it 
mattering not, for the purposes of the case, whether his right to 
the lot be considered a mere privilege, right, or easement for 
the burial of his dead, or whether his rights had ripened into ab- 
solute title by adverse possession. Some courts go so far as to 
hold that such an easement, as well as title to the soil, may be 
acquired and perfected by prescription (or adverse possession for 
a certain length of time), the right to which cannot be defeated 
by the owner of the soil. Others say that where the interment 
is in a public cemetery, when the parties whose duty is to give 
burial are not the owners of the soil, they would have rio higher 
right than a mere easement or license. In any event, says the 
supreme court of Wisconsin in this case, so long as the license 
continued, the lot holder could maintain tresspass for any invas- 
ion or disturbance of it, whether by the grantors or strangers, 
and it reiterates that the plaintiff, having a right to and the pos- 
session of the lot in question, could certainly maintain an action 
against any person who unlawfully disturbed or interfered there- 
with. 
But, the city argued that section 1439 of the Revised Stat- 
utes of Wisconsin of 1878 gave the right to the common council 
to regulate the cemetery, as trustees, and that their action in 
that regard wassemi-judicial, and ought not to be interfered with. 
The supreme court replies that a perfect answer to that conten- 
tion is found in section 1453, which grants the power to require 
any “lot owner or occupant to remove, rearrange, rebuild or re- 
pair, any such trees or shrubs planted, fences, structures, head- 
stones or monuments so as to comply with such regulations as 
they shall have prescribed, by giving reasonable personal notice 
in writing so to do”; and, if they fail to do so, they may cauie it to 
be done, and recover the expense thereof from the person liable 
to such duty. This, the supreme court holds, presupposes the 
adoption of proper regulations for the management and control 
of the cemetery, which seems not to have been done in this case. 
Neither was there any pretense that any notice was given the 
plaintiff to rearrange or remove the trees in question. Conse- 
quently, the court holds that the acts of the city were wholly 
without the lines of the statute, and without legal justification 
therefrom. 
Again, it was urged that the city was engaged in an act for 
the public benefit, in which it had no particular interest, and 
from which it derived no special advantage in its corporate ca- 
pacity, and that therefore it could not be held liable for dam- 
ages. Still, on this point, the court again holds against the city. 
The supreme court says that the city had a right to adopt rea- 
sonable regulations for the management and control of the ceme- 
tery. It also had the power to enforce its regulations in con- 
formity to the law granting such power. But it hr d no right to 
disturb or invade the possession of the lot held by the plaintiff 
except in pursuance of its statutory authority. Its fault lay in 
the attempted exercise of its statutory powers in an unlawful 
manner, and, having authorized the act done, and having 
adopted the wrongful act of its servant, as appeared by its an- 
swer, the supreme court insists, the city must be held liable fer 
the actual damage done. 
It behooves one to be very careful in the wording of docu- 
ments likely to assume legal proportions, as the following will 
suggest: By a decision recently handed down in the Orphans’ 
Court, the Lutheran Church at Greencastle, Pa., will get a $600 
fence around its graveyard. In January, 1890, Mary Diehl, set 
apart $600 for this purpose. She died in 1896. Her relatives 
insisted that the paper containing the gift of the $600 was not 
testamentary in character and they appealed from the decree of 
probate to the Court. The decedent had written “ I have 
given (not bequeathed), $600 or more if necessary,” for the pur- 
pose. The Court holds that the words “or more if necessary,” 
give the paper testamentary character, assuming that if the 
amount set apart was not sufficient, there would be a debt on the 
estate. 
