http://hatcherfamilyassn.com/getperson.php?personID=I40394&tree=WmTheIm Richmond (VA) Dispatch 01 May 1885, p. 1 A GRAVEYARD SUIT. AN INTERESTING DECISION. Case Where a Purchaser of Land Had Put a Hog-Pen on a Family Burial-Ground -- Damages Allowed. The only case decided by the Supreme Court on yesterday will be of much public interest, especially so to the country people throughout the State, for with them the old family graveyard is an institution, a familiar object to be seen on almost every farm in Virginia. This case was as follows: In August, 1872, Benjamin T. Benn came to Virginia from the State of Michigan and purchased in the county of Goochland a farm of 275 acres of land. There was on it at the time he purchased a graveyard of three quarters of an acre in extent, situated just in front of his house, and, though uninclosed[sic], was yet distinctly and visibly marked as such by the growth of cedars, locusts, and similar native woods; by periwinkle covering the ground, and by head- and foot-stones to the graves, and in one instance by a brick wall enclosing one of the graves. After acquiring possession he determined, it seems, to destroy it -- to "wipe it out" -- and accordingly he cut the trees down, had them grubbed up by the roots -- as likewise the bushes and undergrowth; he moved the stones, removed the bricks completely from around the walled grave (a corner or portion of which, it is true, had been knocked down by the falling of a tree in a storm), converted the spot into a hog-pen, and then afterwards had it ploughed and planted in crops. And afterwards refused to permit the interment there of a member of the family, whose body was carried there for that purpose from this city; even threatening to shoot anyone that would attempt to dig a grave there. In August, 1851, Ann Hatcher, the widow, and nine others, the children and devisees of Josiah Hatcher, deceased, sold and conveyed this farm to Mr. John T. Sublett, of this city, in the deed "reserving to the parties of the first part three fourths of an acre as a burying-ground for the family and their descendants." In 1852 John T. Sublett sold and conveyed the farm to David A. and Frank J. Hatcher, two of the nine devisees who had conveyed to him, with a similar reservation of the graveyard. Through them, after several alienations, but all without any reservation of the graveyard, the farm came to the hands of Benn. In 1882, soon after Benn's refusal of the interment of the body there, an action of ejectment was instituted against him for recovery of the graveyard and for damages for the waste and destruction committed by him by the devisees of Josiah Hatcher. This was tried and a verdict in their favor rendered for the premises and $500 damages at the April term of the Circuit Court, 1883, (Judge Wellford, of this city, sitting specially to try the case). From this decision Benn took an appeal. The Supreme Court, in an opinion delivered by Lewis, president, Fauntleroy J., dissenting, affirmed the decision of the lower court. TITLE. It sustained the title of the Hatchers to the graveyard on two grounds: First, that there had been an appropriation -- a dedication -- of this particular spot as a burying-ground long before Mr. Josiah Hatcher's death, and that while a dedication, in its technical, legal sense, is the appropriation of land to some public purpose, such as a highway or a common, yet is is effectual, it seems, when it is an appropriation to some pious or Christian use. "It is not necessary that it should be by deed or in writing. It may be by act in pais; nor is it necessary that the fee should pass, for dedication has respect to the possession merely. And where property is thus set apart an estoppel arises which precludes the owner from revoking the dedication; for the law considers that it would be in violation of good faith, and in some instances even sacreligeous[sic], to reclaim at pleasure property which has been devoted to the use of the public or in furtherance of some charitable or pious object." Beatty vs. Kurtz. 2 Pet., 566; Cincinnati vs. White's lessee, 6 Id., 431; Hunter vs. Trustees of Sandy Hill, 6 Hill, 407; 3 Wash. on Real Prop., 459. And in the second place, the opinion goes on to show that this case "stands on even higher ground. It stands on the solemn agreement of the parties themselves that the lot in question should not only be excepted out of the deed to Sublett, but that it should be devoted in the future, as it had been in the past, to the use of the family as a place of burial for its dead. And the appropriation thus made was not for the separate use of the individuals composing the family at the time, but for the family as a whole and their descendants, and could not be relinquished or assigned, in whole or in part, except by the concurrent act of all for whose benefit it was intended. It follows therefore, that no title to the premises in controversy was acquired by any of the conveyances subsequent to the deed to Sublett." DAMAGES. The court fixes the measure of damages in the case to what it would cost to restore the premises to the condition in which they were before the destruction. In this form of action -- it was an ejectment suit -- the idea of punitive damages would not be allowed, whatsoever might be proper in any other form of action. It sustained the instruction given by the lower court, and under the evidence as certified, and which was not contradictory, it could not say that the damages were excessive. Messrs. B. H. Nash and Jackson Guy were counsel for the Hatchers in this case, and Judge A. K. Leake and Mr. W. B. Pettit for Benn.