refusing to allow and tax solicitor's fees as ment debtor's grantor took no greater title than a part of the costs. the judgment debtor had at the time of the levy and sale. For the reasons given, the decree must be reversed, and the cause remanded to the circuit court for further proceedings in accordance with the views herein expressed. Reversed and remanded. Cent. Dig. 8 759; Dec. Dig. 265.] 7. EXECUTION 272(1) SALE TITLE OF It was not necessary that deeds or certificates of lots in a cemetery should be recorded as against the purchaser of the land comprising the cemetery at execution sale or any other holder of the unsold lots. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 771, 781, 782, 784-788; Dec. Dig. 272(1).] 8. DEDICATION 41 LAWFUL USE A quitclaim deed conveying "all my interest in the unsold lots, the land in Marblehead afore- The court cannot presume that land dedicatsaid, locally known as Harbor View Cemetery," ed to the public for use as a cemetery was not a recital of the boundaries following, conveyed legally used for the purposes of burial in the abtitle to the fee in the land constituting the cem- sence of evidence of permission by the town so etery, subject to the rights of owners of lots to to use the land, in accordance with Rev. Laws, whom conveyances had previously been made for c. 78, § 30. burial purposes. Where the northerly part of a tract of land was well laid out in burial lots, well graded, and covered with well-wrought monuments and stones, and the owner had laid out a burial lot for the use of his family, and made numerous sales of burial lots to others, and in conveying the land did so "subject to the rights of owners of lots to whom conveyances had been made for burial purposes," the facts were sufficient to prove a dedication of the land to public use as a burial ground. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 35, 46; Dec. Dig. 19(5).] 4. VENDOR AND PURCHASER 231(3) - CON STRUCTIVE NOTICE TO PURCHASER. A recorded deed from the owner of land dedicated to the public as a cemetery, which recited that the conveyance was subject to the rights of owners of lots to whom conveyances had been made for burial purposes, and a deed from a deputy sheriff to the purchaser of the land on execution sale, each of which described the land as "locally known as Harbor View Cemetery," were constructive notice to such purchaser that the land was a cemetery for the burial of the dead, and subject to all incidents relating to such property. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 515; Dec. Dig. 231(3).] 5. CEMETERIES 15-RIGHT OF GRANTEE OF LOT. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 80, 82; Dec. Dig. 41.] 9. CEMETERIES 15-RIGHT OF LOT OWNER. The owner of lots in a cemetery was entitled to reasonable access thereto, as against the owner of the unsold portions of the entire tract, and could grade and improve his lots, and remove material therefrom, if reasonably necessary and proper for that purpose. [Ed. Note.-For other cases, see Cemeteries, Cent. Dig. 88 16-18; Dec. Dig. 15.] Appeal from Superior Court, Essex County. Bill in equity by Benjamin W. Trefry against Ariel O. Younger and another. From a decree for plaintiff, defendants appeal. Decree reversed, and conditional decree ordered entered for plaintiff. Chas. M. Crowell, of Marblehead, for appellants. Alden P. White, of Salem, for appellee. For a considerable period of time before April 12, 1913 (how long does not appear in the record), one Hawkes was the owner of situated in Marblehead on the outskirts of a tract of land consisting of several acres, the town and near a town cemetery. He laid out a burial lot upon the land for the use of his family, and also sold numerous burial lots to others upon the northerly end of the tract. The master states that it did not appear what instruments of title were given to the purchasers, or whether any of them was recorded in the registry of deeds. There was evidence that Hawkes had kept a book in which he had made a record of the lots sold, but that this book had been The purchaser at execution sale of land ded- lost. On April 12, 1913, Hawkes conveyed icated to public use as a cemetery by the judg- by quitclaim deed to the defendant Martin A certificate or deed to a purchaser of a lot in a cemetery conveys the privilege to make interments therein, but is not a grant of any interest in the soil, being in the nature of an easement or irrevocable license so long as the place remains a burying ground; the grant of a lot being analogous to a grant of a pew in a church. [Ed. Note.-For other cases, see Cemeteries, Cent. Dig. §§ 16-18; Dec. Dig. 15.] 6. EXECUTION 265- SALE-TITLE OF PUB CHASER. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "all my interest in the unsold lots, the land in Marblehead aforesaid, locally known as Harbor View Cemetery"; then follows a recital of the adjoining owners; this deed was acknowledged and was duly recorded in the registry of deeds. Later in the same year, Martin conveyed to the defendant Younger by three several instruments which are all substantially in the same form, certain lots in the cemetery tract. These conveyances are under seal and in the form of a grant; they convey by number the lots "in Harbor View Cemetery in said Marblehead to be used for the purposes of burial," and run “to the grantee and his heirs forever"; they have not been recorded in the registry of deeds. Afterwards a judgment was obtained against Martin by one Hollis, and upon an execution sale the land was bid off by the plaintiff, who received from the deputy sheriff who made the sale, a deed dated November 7, 1914, which was duly recorded; it contains substantially the same description of the land sold and conveyed as appears in the deed from Hawkes to Martin. We are of opinion that the interest of Martin in the land was subject to sale on execution, and that the plaintiff took thereunder all the land owned by Martin, subject to the rights of those who previously had purchased burial lots. [1, 2] The contention of the defendants that the deed from Hawkes to Martin conveyed no title to the fee in the land constituting the cemetery is not tenable. We are of opinion that the deed of "all my interest in the unsold lots," followed by the recital, "Said premises are bounded: Northeasterly and northwesterly by land formerly of Looney; southeasterly by land now or formerly of Wyman; and southwesterly by Cemetery road and land now or formerly of Looney, or however said premises may be bounded," conveyed the whole tract, subject to the rights of owners of lots to whom conveyances had been made, for burial purposes. The land comprising the cemetery could lawfully be sold or mortgaged. Garden Cemetery Corp. v. Baker, 218 Mass. 339, 341, 342, 105 N. E. 1070, Ann. Cas. 1916B, 75; Sweetser v. Manning, 200 Mass. 378, 86 N. E. 897; Donnelly v. Boston Catholic Cemetery Ass'n, 146 Mass. 163, 166, 15 N. E. 505. The master finds that the northerly part of the land "is well laid out in burial lots, well graded and covered with well-wrought monuments and stones." the deed from the deputy sheriff to the plaintiff, in each of which the land is described as "locally known as Harbor View Cemetery," were constructive notice to the plaintiff that it was a cemetery for the burial of the dead and was subject to all the incidents relating to such property. [The rights of owners in burial lots in cemeteries are well established; these rights ordinarily are in the nature of an easement; they do. not convey an absolute right of property, but give the right of burial so long as the place continues to be used as a burial ground. It is a limited use for purposes of interment which gives no title to the land. A grant of a lot in a cemetery is said to be analogous to a grant of a pew in a church. Sohier v. Trinity Church, 109 Mass. 1; Feeley v. Andrews, 191 Mass. 313, 77 N. E. 766; Massachusetts Baptist Missionary Soc. v. Bowdoin Sq. Baptist Soc., 212 Mass. 198, 98 N. E. 1045, Ann. Cas. 1913C, 472; Garden Cemetery Corp. v. Baker, 218 Mass. 339, 105 N. E. 1070, Ann. Cas. 1916B, 75. A certificate or deed to purchasers of lots in a cemetery conveys the privilege to make interments in the lots; it is not a grant of any interest in the soil, but is in the nature of an easement or irrevocable license so long as the place continues as a burying ground. Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Windt v. German Reformed Church, 4 Sandf. Ch. (N. Y.) 471; Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903; Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377; Catholic Cathedral v. Manning, 72 Md. 116, 19 Atl. 599. [6] The finding of the master that the three deeds or certificates were severally issued to the defendant Younger for a valuable consideration upon the dates therein written conveyed to him an easement or right of burial in the lots with all the privileges incident to such a conveyance. The plaintiff took no greater title under the deed to him than Martin, the judgment debtor, had at the time of the levy and sale. [7] It is not necessary that the deeds or certificates to Younger should be recorded as against the plaintiff or any other holder of the unsold lots. Feeley v. Andrews, 191 Mass. 315, 77 N. E. 766; Davidson v. Reed, 111 Ill. 167, 169, 53 Am. Rep. 613; Conger v. Treadway, 50 Hun, 451, 3 N. Y. Supp. 152. [8] We cannot presume that the land was not legally used for the purposes of burial in the absence of evidence of permission by the town so to use it in accordance with R. L. c. 78, § 30. No such defense is set up in the answer, nor was that claim made at the hearing before the master. Meagher v. Driscoll, 99 Mass. 281, 284, 96 Am. Dec. 759. [9] Upon the findings of the master, the plaintiff took title to the real estate subject to the rights of lot owners including the rights of Younger. Younger, as the owner of the lots conveyed to him, was entitled to reasonable access thereto, and could grade [3] These findings, and the findings that Hawkes had laid out a burial lot for the use of his family and had made numerous sales of burial lots to others, together with the language in the deed from Hawkes to Martin, are amply sufficient to prove a dedication to public use of the land as a burial ground. Com. v. Viall, 2 Allen, 512; Davidson v. Reed, 111 Ill. 167, 53 Am. Rep. 613. * terial therefrom if reasonably necessary and, "goods, wares, merchandise," within the proper for that purpose, but not otherwise. meaning of this statute. For the reasons stated, we are of opinion that the decree must be reversed, and a decree entered enjoining the defendants from removing soil, gravel, or other material, from the lots owned by Younger unless such removal is reasonably necessary or required in order to properly grade and improve them. So ordered. (226 Mass. 64) BASSET V. CITY OF BOSTON (three cases). (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 5, 1917.) TAXATION 260 PLACE OF TAXATION "GOODS, WARES, MERCHANDISE"-"GOODS" -"MERCHANDISE. "" Under St. 1909, c. 490, pt. 1, § 23, cl. 1, amending and re-enacting Rev. Laws c. 12, 8 23, cl. 1, and providing that "goods, wares, merchandise," etc., shall be taxed in cities or towns in which the owners hire or occupy manufactories, stores, hotels or offices, office furniture and equipment required by a public accountant to carry on his business in the city of Boston, although he resided in the city of Newton, is taxable in the city of Boston, the phrase, "goods, wares, merchandise," speaking generally, and when taken together are equivalent to the term "personal property," while the term "goods" includes all other chattels personal other than things in action and money. [Ed. Note.-For other cases, see Taxation, Çent. Dig. 88 433, 434; Dec. Dig. 260. For other definitions, see Words and Phrases, First and Second Series, Goods; Merchandise; Wares and Merchandise.] Report from Superior Court, Middlesex County; Richard W. Irwin, Judge. Consolidated actions by Horace S. Basset against the City of Boston. On report. Judgment for defendant. Frank M. Forbush, of Boston, for plaintiff. Wm. P. Higgins, of Boston, for defend ant. CARROLL, J. The plaintiff is a public accountant with an office in the city of Boston, in which city during 1913, 1914 and 1915, he had such office furniture and equipment as were required for the conduct of his business. He was assessed on this furniture and equipment during these years by the assessors of the city of Boston, while he was a resident and tax-payer in the city of Newton. The taxes have been paid and these actions are to recover because they were illegally assessed. R. L. c. 12 § 23, cl. 1, provided that: "Goods, wares, merchandise and other stock in trade, in cities or towns in the commonwealth, other than those in which the ownor towns in which the owners hire or occupy shall be taxed in the cities manufactories, stores, shops or wharves." ers reside * From the language of this statute as well as from the arrangement of the words, a strong and perhaps convincing argument merchandise there spoken of were such as could be made that the goods, wares, and either formed the stock in trade of the merchant or the manufacturer, or were merchandise of a like kind, and that the statute had no application to the fixtures or furniture of an office or other place of business. See Barron v. Boston, 187 Mass. 168, 171, 72 N. E. 951; Charlestown v. Co. Commissioners, 109 Mass. 270. By St. 1909, c. 490, pt. 1, § 23, cl. 1, changes were made: The word "other" before "stock in trade" was stricken out, and the words "hotels or offices" were added. The property of nonresidents taxable under this section is not only the property of the owners or occupants of manufactories, stores, shops or wharves, but also of "hotels or offices." In this statute the words "goods, wares, merchandise" are not used in any restrictive way, and there is no language in the act nor any arrangement of words from which it could be argued that the phrase was limited to property kept for sale or of the same kind Goods, wares and merchandise of every kind, as merchandise constituting a stock in trade. whether kept for sale or merely for use, are included in its scope. The phrase, "goods, wares, merchandise" is of large signification, both at common law and under various statutes, especially the statute of frauds. Speaking generally, the words taken together designate commodities and personal chattels and are equivalent to the term personal property. See New England & Savannah S. S. Co. v. Commonwealth, 195 Mass. 385, 81 N. E. 286, 11 Ann. Cas. 678; Tisdale v. Harris, 20 Pick. 9, 13. "'Goods' include all chattels personal other than things in action and money." Sales Act, St. 1908, c. 237. In Tobey v. Kip, 214 Mass. 477, 101 N. E. 998, it was decided that a yacht used as a pleasure boat and kept by a non-resident St. 1909, c. 490, pt. 1, § 23, cl. 1, directs owner in the town of Falmouth, was "merthat: "Goods, wares, merchandise, capital employed in business and stock in trade, in cities or towns in the commonwealth, shall be taxed in the cities or towns in which the owners hire or occupy manufactories, stores, hotels, or offices." The plaintiff had an office in Boston, and the only question for decision is whether the furniture in use in his office, and not kept for sale, is comprehended by the phrase, chandise" under St. 1909, c. 516, § 2, providing for the taxation of "merchandise, machinery and animals owned by persons not inhabitants of this commonwealth," and in New England & Savannah S. S. Co. v. Commonwealth, ubi supra, a steamship in use for the transportation of freight and passengers, was held to be included in this word "merchandise," by St. 1903, c. 437, § 34, relating to the taxation of corporate franchises. By For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tance from Oakley to Madisonville is 2.4 miles, and the commission found that, the charge for transporting lumber less than 10 miles should not exceed 2.5 cents per 100 pounds, and this was found to be a reasonable rate. It was ordered that the railroad company be directed and required to cease and desist from charging and collecting said rate of 3.2 cents per 100 pounds for the transportation of lumber between Oakley and Madisonville, and to substitute therefor a rate not to exceed 2.5 cents per 100 pounds, and that a tariff be published and filed in accordance therewith. This order was made on the 7th day of April, 1915, and the railroad company in compliance therewith established a rate on lumber in carloads from Oakley to Madisonville of 2.5 cents per 100 pounds, effective May 20, 1915. Thereafter, on the 21st day of May, 1915, plaintiffs in error filed another complaint with the Public Utilities Commission against this railroad company, in which it was claimed that the rate of 2.5 cents per 100 pounds and all other rates and charges maintained and charged by the company for the transportation of lumber in carloads from Oakley to Madisonville since November 16, 1914, were and [Ed. Note.-For other cases, see Public Serv- had been unjust and unreasonable and disice Commissions, Dec. Dig. 32.] Error to the Public Utilities Commission. Proceeding by W. H. Settle and George W. Clephane, partners, doing business as W. H. Settle & Co., against the Baltimore & Ohio Southwestern Railroad Company. On error to the Public Utilities Commission to review an order of the commission. Order sustained. Harry C. Barnes, of Cincinnati, for plaintiffs in error. Freeman T. Eagleson, of Cambridge, and Edward Barton and William A. Eggers, both of Cincinnati, for defendant in error. criminatory, and subjected plaintiffs in error, the locality of Madisonville, and the traffic in question, to an undue and unreasonable prejudice and disadvantage. The prayer of the complaint was that the commission make an order commanding the railroad company to place Madisonville within the Cincinnati switching limits, and to cease and desist from the alleged violation of the laws of the state of Ohio. An answer to this complaint was filed by the railroad company, in which it was set up among other things that the decision of the commission of April 17, 1915, was res adjudicata. The matter came on for consideration upon the pleadings, the evidence and exhibits, including the PER CURIAM. On February 1, 1915, record of the proceedings instituted on Febplaintiffs in error, W. H. Settle and George ruary 1, 1915, and was argued by counsel; W. Clephane, partners doing business as and the order of the commission, dated OcW. H. Settle & Co., filed a complaint with tober 29, 1915, was that the case be dismissthe Public Utilities Commission of Ohio ed. An application for a rehearing was filed against the Baltimore & Ohio Southwestern and was denied. A petition in error was Railroad Company, in which they attacked filed in this court for the purpose of having the rate charged by the railroad company for the transportation of lumber from Oakley station, Cincinnati, Ohio, to Madisonville station, Cincinnati, Ohio. The matter was heard upon the complaint, the answer of the railroad company, and the evidence. The rate for the transportation of lumber from Oakley to Madisonville, charged by the railroad company prior to November 16, 1914, was one cent per 100 pounds. On November 16, 1914, the rate was increased to 3.7 cents per 100 pounds. On January 14, 1915, it was reduced to 3.2 cents per 100 pounds, which last-named rate was in effect at the time of the filing of the complaint. The dis the order of the Public Utilities Commission reversed, vacated, or modified. The order of the commission of October 29, 1915, dismissing the second case, was in effect a holding that the rate complained of was not unreasonable, unjust, or discriminatory, and, further, that no showing was made that Madisonville should be placed within the Cincinnati switching limits. As was held in Hocking Valley Railway Co. v. Public Utilities Commission of Ohio, 92 Ohio St. 362, 110 N. E. 521, this court will not substitute its judgment for that of an administrative board, created pursuant to an act of the Legislature, as to matters within its province, and before this court will in- [ by the secretary of state, for the sum of 19 Order sustained. NICHOLS, C. J., and JOHNSON, DONA- (94 Ohio St. 382) STATE ex rel. DAVIES MFG. CO. v. DONA- HEY, State Auditor. (No. 15198.) (Syllabus by the Court.) 1. STATUTES 351⁄2-EFFECT REFERENndum. [Ed. Note.-For other cases, see Statutes, It appears that the contract in question [1] Section 6 of the Appropriation Act (106 "The monies appropriated in sections 2 and [Ed. Note.-For other cases, see States, Cent. penses incurred, and the date of purchase or 98.] Mandamus by the State on the relation of McGhee, Davis & Boulger, of Columbus, The Appropriation Act took effect July 1, The contention is made that the contract curing of competitive bids under its provi- PER CURIAM. This is an action in man-propriation Act, for the reason that the pro- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |