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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 Cent. Dig. $ 759; Dec. Dig. Om 265.]
(Ed. Note.-For other cases, see Execution, circuit court for further proceedings in ac
7. EXECUTION C 272(1) SALE TITLE OY cordance with the views herein expressed.
PURCHASER-DEEDS OF LOTS-RECORD. Reversed and remanded.
It was not necessary that deeds or certifi
cates of lots in a cemetery should be recorded as (226 Mass. 5)
against the purchaser of the land comprising the TREFRY v. YOUNGER et al.
cemetery at execution sale or any other holder of
the unsold lots. (Supreme Judicial Court of Massachusetts. Es [Ed. Note.-For other cases, see Execution, sex. Jan. 22, 1917.)
Cent. Dig. $$ 771, 781, 782, 784-788; Dec. Dig. 1. CEMETERIES 12—DEED-CONVEYANCE OF
8. DEDICATION 41 LAWFUL USE PREA quitclaim deed conveying “all my interest SUMPTION-STATUTE. in the unsold lots, the land in Marblehead afore The court cannot presume that land dedicatsaid, locally known as Harbor View Cemetery," ed to the public for use as a cemetery was not a recital of the boundaries following, conveyed legally used for the purposes of burial in the abtitle to the fee in the land constituting the cem-sence of evidence of permission by the town so etery, subject to the rights of owners of lots to to use the land, in accordance with Rev. Laws, whom conveyances had previously been made for c. 78, 8 30. burial purposes.
[Ed. Note. For other cases, see Dedication, [Ed. Note.--For_other cases, see Cemeteries, Cent. Dig. $$ 80, 82; Dec. Dig. Ow41.] Cent. Dig. $ 13; Dec. Dig. Om 12.)
9. CEMETERIES 15RIGHT OF LOT OWNER. 2. CEMETERIES 13–SALE OR MORTGAGE OF The owner of lots in a cemetery was entitled LAND.
to reasonable access thereto, as against the ownLand comprising a cemetery could lawfully er of the unsold portions of the entire tract, and be sold or mortgaged.
could grade and improve his lots, and remove (Ed. Note.--For other cases, see Cemeteries, material therefrom, if reasonably necessary and Cent. Dig. $ 14; Dec. Dig. Cm13.]
proper for that purpose. 3. DEDICATION cm19(5)–CEMETERIES DEDI.
[Ed. Note.-For other cases, see Cemeteries, CATION OF LAND.
Cent. Dig. 88 16-18; Dec. Dig. 15.) Where the northerly part of a tract of land Appeal from Superior Court, Essex County. was well laid out in burial lots, well graded, and covered with well-wrought monuments and
Bill in equity by Benjamin W. Trefry stones, and the owner had laid out a burial lot against Ariel O. Younger and another. From for the use of his family, and made numerous a decree for plaintiff, defendants appeal. sales of burial lots to others, and in conveying Decree reversed, and conditional decree orthe land did so “subject to the rights of owners of lots to whom conveyances had been made for dered entered for plaintiff. burial purposes," the facts were sufficient to Chas. M. Crowell, of Marblehead, for approve a dedication of the land to public use as a burial ground.
pellants. Alden P. White, of Salem, for (Ed. Note.-For other cases, see Dedication, appellee. Cent. Dig. $$ 35, 46; Dec. Dig. 19(5).] 4. VENDOB AND PURCHASER Om 231(3) - CON
CROSBY, J. This is a bill in equity STRUCTIVE NOTICE TO PURCHASER.
brought to restrain the defendants from enA recorded deed from the owner of land ded-tering upon certain real estate alleged to be icated to the public as a cemetery, which recited owned by the plaintiff, and removing therethat the conveyance was subject to the rights of owners of lots to whom conveyances had been from soil, gravel, and other materials. The made for burial purposes, and a deed from a dep- case was referred to a master who has found uty. sheriff to the purchaser of the land on exe certain facts, and a decree has been entered cution sale, each of which described the land as in favor of the plaintiff substantially as pray"locally known as Harbor View Cemetery,” were constructive notice to such purchaser that the ed for in the bill. land was a cemetery for the burial of the dead, For a considerable period of time before and subject to all incidents relating to such April 12, 1913 (how long does not appear in property.
the record), one Hawkes was the owner of [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 487, 515; Dec. Dig. a tract of land consisting of several acres, 231(3).)
situated in Marblehead on the outskirts of 5. CEMETERIES O15—RIGHT OF GRANTEE OF
the town and near a town cemetery. He Lot.
laid out a burial lot upon the land for the A certificate or deed to a purchaser of a lot use of his family, and also sold numerous in a cemetery conveys the privilege to make in- burial lots to others upon the northerly end terments therein, but is not a grant of any in- of the tract. The master states that it did terest in the soil, being in the nature of an easement or irrevocable license so long as the place not appear what instruments of title were remains a burying ground; the grant of a lot given to the purchasers, or whether any of being analogous to a grant of a pew in a church. them was recorded in the registry of deeds.
(Ed. Note.-For other cases, see Cemeteries, There was evidence that Hawkes had kept Cent. Dig. $$ 16–18; Dec. Dig. Om 15.)
a book in which he had made a record of 6. EXECUTION Om 265 — SALE – TITLE OF PUB- 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
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, the deed from the deputy sheriff to the plainin Marblehead aforesaid, locally known as tiff, in each of which the land is described Harbor View Cemetery"; then follows a re as “locally known as Harbor View Cemecital of the adjoining owners; this deed was tery,” were constructive notice to the plainacknowledged and was duly recorded in the tiff that it was a cemetery for the burial of registry of deeds.
the dead and was subject to all the incidents Later in the same year, Martin conveyed relating to such property. to the defendant Younger by three several [uj The rights of owners in burial lots in instruments which are all substantially in cemeteries are well established; these rights the same form, certain lots in the cemetery ordinarily are in the nature of an easement; tract. These conveyances are under seal and they do. not convey an absolute right of in the form of a grant; they convey by num- property, but give the right of burial so long ber the lots "in Harbor View Cemetery in as the place continues to be used as a burial said Marblehead to be used for the purposes ground. It is a limited use for purposes of of burial,” and run "to the grantee and his interment which gives no title to the land. heirs forever"; they have not been recorded | A grant of a lot in a cemetery is said to be in the registry of deeds.
analogous to a grant of a pew in a church. Afterwards judgment was obtained Sohier v. Trinity Church, 109 Mass. 1; Feeley against Martin by one Hollis, and upon an v. Andrews, 191 Mass. 313, 77 N. E. 766; Masexecution sale the land was bid off by the sachusetts Baptist Missionary Soc. v. Bowdoin plaintiff, who received from the deputy sher. Sq. Baptist Soc., 212 Mass. 198, 98 N. E. 1045, its who made the sale, a deed dated Novem- | Ann. Cas. 1913C, 472; Garden Cemetery ber 7, 1914, which was duly recorded; it Corp. v. Baker, 218 Mass. 339, 105 N. E. contains substantially the same description 1070, Ann. Cas. 1916B, 75. A certificate or of the land sold and conveyed as appears deed to purchasers of lots in a cemetery in the deed from Hawkes to Martin.
conveys the privilege to make interments in We are of opinion that the interest of Mar- the lots; it is not a grant of any interest tin in the land was subject to sale on execu- in the soil, but is in the nature of an easetion, and that the plaintiff took thereunder ment or irrevocable license so long as the all the land owned by Martin, subject to the place continues as a burying ground. Page rights of those who previously had purchas- v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; ed burial lots.
Windt v. German Reformed Church, 4 Sandf. [1, 2] The contention of the defendants Ch. (N. Y.) 471; Dwenger v. Geary, 113 Ind. that the deed from Hawkes to Martin con- 106, 14 N. E. 903; Kincaid's Appeal, 66 Pa. veyed no title to the fee in the land consti- | 411, 5 Am. Rep. 377; Catholic Cathedral v. tuting the cemetery is not tenable. We are Manning, 72 Md. 116, 19 Atl. 599. of opinion that the deed of "all my interest  The finding of the master that the in the unsold lots;" followed by the recital, three deeds or certificates were severally is"Said premises are bounded: Northeasterly sued to the defendant Younger for a valuable and northwesterly by land formerly of Loon- consideration upon the dates therein written ey; southeasterly by land now or formerly conveyed to him an easement or right of of Wyman; and southwesterly by Cemetery burial in the lots with all the privileges in. road and land now or formerly of Looney, cident to such a conveyance. The plaintiff or however said premises may be bounded," took no greater title under the deed to him conveyed the whole tract, subject to the than Martin, the judgment debtor, had at rights of owners of lots to whom con- the time of the levy and sale. veyances had been made, for burial purposes.  It is not necessary that the deeds or The land comprising the cemetery could law- certificates to Younger should be recorded fully be sold or mortgaged. Garden Ceme-as against the plaintiff or any other holder tery Corp. v. Baker, 218 Mass. 339, 341, 342, of the unsold lots. Feeley V. Andrews, 191 105 N. E. 1070, Ann. Cas. 1916B, 75; Sweet- Mass. 315, 77 N. E. 766; Davidson v. Reed, ser v. Manning, 200 Mass. 378, 86 N. E. 897; | 111 Ill. 167, 169, 53 Am. Rep. 613; Conger v. Donnelly v. Boston Catholic Cemetery Ass'n, Treadway, 50 Hun, 451, 3 N. Y. Supp. 152. 146 Mass. 163, 166, 15 N. E. 505.
 We cannot presume that the land was The master finds that the northerly part not legally used for the purposes of burial of the land “is well laid out in burial lots, in the absence of evidence of permission by well graded and covered with well-wrought the town so to use it in accordance with monuments and stones."
R. L. c. 78, § 30. No such defense is set up  These findings, and the findings that in the answer, nor was that claim made at Hawkes had laid out a burial lot for the use the hearing before the master. Meagher v. of his family and had made numerous sales Driscoll, 99 Mass. 281, 284, 96 Am. Dec. 759. of burial lots to others, together with the  Upon the findings of the master, the language in the deed from Hawkes to Martin, plaintiff took title to the real estate subject are amply sufficient to prove a dedication to the rights of lot owners including the to public use of the land as a burial ground. rights of Younger. Younger, as the owner Com. v. Viall, 2 Allen, 512; Davidson v. Reed, of the lots conreyed to him, was entitled to 111 Ill. 167, 53 Am, Rep. 613.
reasonable access thereto, and could grade
terial therefrom 1f 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 R, L. C. 12 8 23, cl. 1, provided that: that the decree must be reversed, and a de "Goods, wares, merchandise and other stock in cree entered enjoining the defendants from trade,
in cities or towns in the comremoving soil, gravel, or other material, monwealth, other than those in which the own
shall be taxed in the cities from the lots owned by Younger unless such or towns in which the owners hire or occupy removal is reasonably necessary or required manufactories, stores, shops or wharves." in order to properly grade and improve them. From the language of this statute as well So ordered.
as from the arrangement of the words, a
strong and perhaps convincing argument (226 Mass. 64) BASSET v. CITY OF BOSTON (three cases). merchandise there spoken of were such as
could be made that the goods, wares, and (Supreme Judicial Court of Massachusetts.
either formed the stock in trade of the mer. Middlesex. Feb. 5, 1917.)
chant or the manufacturer, or were merchanTAXATION Om 260 PLACE OF TAXATION
dise of a like kind, and that the statute had “Goods, WARES, MERCHANDISE" — "GOODS" _"MERCHANDISE.
no application to the fixtures or furniture of Under St. 1909, c. 490, pt. 1, $ 23, cl. 1, an office or other place of business. See Baramending and re-enacting Rev. Laws c. 12, $ron v. Boston, 187 Mass. 168, 171, 72 N. E. 23, cl. 1, and providing that "goods, wares, mer- 951; Charlestown v. Co. Commissioners, 109 chandise,” etc., shall be taxed in cities or towns in which the owners hire or occupy manufac- Mass. 270. tories, stores, hotels or offices, office furniture By St. 1909, c. 490, pt. 1, § 23, cl. 1, changes and equipment required by a public accountant were made: The word "other" before "stock to carry on his business in the city of Boston, in trade” was stricken out, and the words although he resided in the city of Newton, is taxable in the city of Boston, the phrase, "goods, "hotels or offices” were added. The property wares, merchandise," speaking generally, and of nonresidents taxable under this section is when taken together are equivalent to the not only the property of the owners or octerm “personal property," while the term "goods” includes all other chattels personal cupants of manufactories, stores, shops or other than things in action and money.
wbarves, but also of "hotels or offices." In (Ed. Note.-For other cases, see Taxation, this statute the words “goods, wares, merÇent. Dig. 88 433, 434; Dec. Dig. Om 260.
chandise" are not used in any restrictive For other definitions, see Words and Phrases, way, and there is no language in the act nor First and Second Series, Goods; Merchandise; Wares and Merchandise.]
any arrangement of words from which it
could be argued that the phrase was limited Report from Superior Court, Middlesex to property kept for sale or of the same kind County; Richard W. Irwin, Judge.
as merchandise constituting a stock in trade. Consolidated actions by Horace S. Basset Goods, wares and merchandise of every kind, against the City of Boston.
On report. whether kept for sale or merely for use, are Judgment for defendant.
included in its scope. Frank M. Forbush, of Boston, for plain The phrase, "goods, wares, merchandise" tiff. Wm. P. Higgins, of Boston, for defend- is of large signification, both at common law ant.
and under various statutes, especially the
statute of frauds. Speaking generally, the CARROLL; J. The plaintiff is a public words taken together designate commodities accountant with an office in the city of Bos- and personal chattels and are equivalent to ton, in which city during 1913, 1914 and 1915, the term personal property. See New Enghe had such office furniture and equipment land & Savannah S. S. Co. v. Commonwealth, as were required for the conduct of his busi- | 195 Mass. 385, 81 N. E. 286, 11 Ann. Cas. 678; ness. He was assessed on this furniture and Tisdale v. Harris, 20 Pick. 9, 13. “'Goods' equipment during these years by the asses- include all chattels personal other than sors of the city of Boston, while he was a things in action and money." Sales Act, St. resident and tax-payer in the city of Newton. 1908, c. 237. The taxes have been paid and these actions In Tobey v. Kip, 214 Mass. 477, 101 N. E. are to recover because they were illegally 998, it was decided that a yacht used as a assessed.
pleasure boat and kept by a non-resident St. 1909, C. 490, pt. 1, § 23, c. 1, directs owner in the town of Falmouth, was “mer. that:
chandise" under St. 1909, c. 516, § 2, provid“Goods, wares, merchandise, capital employ. ing for the taxation of "merchandise, maed in business and stock in trade,
chinery and animals owned by persons not in cities or towns in the commonwealth, shall be taxed in the cities or towns'in which inhabitants of this commonwealth,” and in the owners hire or occupy manufactories, stores, New England & Savannah S. S. Co. v. Comhotels, or offices.”
monwealth, ubi supra, a steamship in use for The plaintiff had an office in Boston, and the transportation of freight and passengers, the only question for decision is whether the was held to be included in this word “merfurniture in use in his office, and not kept chandise," by St. 1903, c. 437, § 34, relating to for sale, is comprehended by the phrase, I the taxation of corporate franchises. By
ma For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
these decisions, merchandise has been given tance from Oakley to Madisonville is 2.4 an extensive meaning, including the pleasure miles, and the commission found that, the yacht as well as the steamship of commerce; charge for transporting lumber less than 10 it is not restricted to the goods and commod. miles should not exceed 2.5 cents per 100 ities of trade and the material and product of pounds, and this was found to be a reasonthe manufacturer.
able rate. It was ordered that the railroad It follows that the furniture and equip company be directed and required to cease ment in the plaintiff's office were goods, and desist from charging and collecting said wares and merchandise, and were properly rate of 3.2 cents per 100 pounds for the assessed in Boston. According to the terms transportation of lumber between Oakley and of the report judgment is to be entered for Madisonville, and to substitute. therefor a the defendant, and for its costs of suit in rate not to exceed 2.5 cents per 100 pounds, each action.
and that a tarifi be published and filed in So ordered.
accordance therewith. This order was made
on the 7th day of April, 1915, and the rail(94 Ohio St. 417)
road company in compliance therewith esSETTLE et al. v. PUBLIC UTILITIES COM- tablished a rate on lumber in carloads from
MISSION OF OHIO. (No. 15145.) Oakley to Madisonville of 2.5 cents per (Supreme Court of Ohio. July 1, 1916.) 100 pounds, effective May 20, 1915. There
after, on the 21st day of May, 1915, plaintiffs (Syllabus by Editorial Staff.)
in error filed another complaint with the PubPUBLIC SERVICE COMMISSIONS. Ow32_ORDERS lic Utilities Commission against this railroad OF-REVIEW.
The Supreme Court will not substitute its company, in which it was claimed that the judgment for that of an administrative board rate of 2.5 cents per 100 pounds and all other as to matters within its province, and so will rates and charges maintained and charged not interfere with an order of the Public Utili- by the company for the transportation of ties Commission, where it did not appear from the record that the action of the commission lumber in carloads from Oakley to Madisonwas unlawful or unreasonable.
ville since November 16, 1914, were and [Ed. Note.-For other cases, see Public Servo had been unjust and unreasonable and disice Commissions, Dec. Dig. Om32.]
criminatory, and subjected plaintiffs in erError to the Public Utilities Commission. ror, the locality of Madisonville, and the Proceeding by W. H. Settle and George traffic in question, to an undue and unreasonW. Clephane, partners, doing business as able prejudice and disadvantage. The prayW. H. Settle & Co., against the Baltimore er of the complaint was that the commission & Ohio Southwestern Railroad Company. On
make an order commanding the railroad comerror to the Public Utilities Commission to pany to place Madisonville within the Cinreview an order of the commission. Order
cinnati switching limits, and to cease and sustained.
desist from the alleged violation of the laws
of the state of Ohio, An answer to this Harry C. Barnes, of Cincinnati, for plain-complaint was filed by the railroad company, tiffs in error. Freeman T. Eagleson, of Cam- in which it was set up among other things bridge, and Edward Barton and William A. that the decision of the commission of April Eggers, both of Cincinnati, for defendant in 17, 1915, was res adjudicata. The matter
came on for consideration upon the plead
ings, 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 the order of the Public Utilities Commisfor the transportation of lumber from Oakley sion reversed, vacated, or modified. station, Cincinnati, Ohio, to Madisonville The order of the commission of October station, Cincinnati, Ohio. The matter was 29, 1915, dismissing the second case, was in heard upon the complaint, the answer of the effect a holding that the rate complained of railroad company, and the evidence. The was not unreasonable, unjust, or discrimrate for the transportation of lumber from inatory, and, further, that no showing was Oakley to Madisonville, charged by the rail. made that Madisonville should be placed road company prior to November 16, 1914, within the Cincinnati switching limits. As was one cent per 100 pounds. On November was held in Hocking Valley Railway Co. v. 16, 1914, the rate was increased to 3.7 cents Public Utilities Commission of Ohio, 92 Ohio per 100 pounds. On January 14, 1915, it St. 362, 110 N. E. 521, this court will not was reduced to 3.2 cents per 100 pounds, substitute its judgment for that of an adwhich last-named rate was in effect at the ministrative board, created pursuant to an time of the filing of the complaint. The dis- 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 1944
Metal Ceiling Company, who agreed to fur-
nish the tags to the relator for the sum of 15
cents per pair. Acting in pursuance of the
state issued his voucher in favor of the rela-
tor for that sum. Respondent refusing to
pay the same, but acknowledging that the
tract price of 15 cents was just and reason-
into between him and the secretary of state
by virtue of which in order to secure future
Section 6 of the Appropriation Act passed the state he agreed, pending the determina-
tracts entered into by the relator as afore-
 Section 6 of the Appropriation Act (106
"The monies appropriated in sections 2 and
itemized form and specify the classification of
the service rendered, material furnished, or ex-
time of service, and show that competitive bids
were secured, unless otherwise provided by law;
The Appropriation Act took effect July 1,
The contention is made that the contract
of the secretary of state made in September,
1915, is not subject to section 6 of the Ap-
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes