
27 U.S. 566 (____)
2 Pet. 566
CHARLES A. BEATTY AND JOHN T. RITCHIE, APPELLANTS
vs.
DANIEL KURTZ AND OTHERS, TRUSTEES OF THE GERMAN LUTHERAN CHURCH OF GEORGETOWN, APPELLEES.
Supreme Court of United States.

*572 The cause was argued for the appellants, by Mr C.C. Lee; and for the appellees, by Messrs Key and Dunlop.
*578 Mr Justice STORY delivered the opinion of the Court.
This is an appeal in a suit in equity from a decree of the circuit court of the district of Columbia, sitting for the county of Washington.
Georgetown was erected into a town by an act of the legislature of Maryland, passed in 1751, ch. 25. By subsequent acts additions were made to the territorial limits of the town; and the town was created a corporation, with the usual municipal officers, by an act of the Maryland legislature, passed in 1789, ch. 23. The charter of incorporation has been subsequently amended by congress, by various acts passed upon the subject since the cession.
In the year 1769, Charles Beatty and George F. Hawkins laid out a town, known by the name of Beatty and Hawkins's addition to Georgetown; and which is now included within its corporate limits. The lots of this addition were disposed *579 of by way of lottery, under the direction of commissioners appointed to lay out the same, and conduct the drawing of the lottery. The books of the lottery and the plan of the lots, and a connected survey thereof, were afterwards, by act passed in 1796, ch. 54, ordered to be recorded in the clerk's office for the territory of Columbia, and copies thereof to be good evidence in all courts of law and equity in the state. Upon the original plan so recorded, one lot was marked out and inscribed with these words, "for the Lutheran church;" and this lot was in fact part of the land of which Charles Beatty was seised.
The bill was brought up by the original plaintiffs, alleging themselves to be trustees and and agents for the German Lutheran church composed of the members of the German Lutheran church of Georgetown, duly organized as such, in behalf of themselves and the members of the said church. It charges the laying out of the lot in question for the sole use and benefit of the Lutheran church, to be held by them for religious purposes and the use of the congregation, as above-mentioned. That soon afterwards the lot was taken possession of by the said German Lutherans in Georgetown; who organized themselves into a church or congregation, and erected a church or house of worship thereon; and the lot was enclosed by them and a church erected thereon; and hath been kept and held by them during a period of fifty years; and hath been used as a burying ground for the members of the church, with the avowed intention of building thereon another church or place of worship, the first building erected thereon being decayed, whenever their funds would enable them so to do. That during all this period their possession has never been questioned, and the lot has been exempted from taxation as property set apart for a religious purpose. It further charges that upon the organization of the church or congregation, certain officers, called a committee and trustees, were appointed to take care of the said church, which appointments have been from time to time renewed; that in 1824 the plaintiffs were re-appointed as such, having been so appointed at former times. It further charges that Charles Beatty died about sixteen years ago, *580 without having made any conveyance of the said lot, and that Charles A. Beatty, the defendant, is his heir, and has the title by descent; and prays that he may be compelled to convey it to them. It further charges that Ritchie, the other defendant, has unwarrantably disputed their title; and has entered upon the lot and removed some of the tomb stones erected thereon, and means to dispossess the plaintiffs and to remove the tomb stones and graves. The bill therefore prays that they may be quieted in their possession, and that a writ of injunction may issue, and for further relief.
The defendants put in a joint answer. They admitted that the lot was so marked in the plot as the bill states, and that it was Charles Beatty's intention to appropriate the same to the use of the Lutheran congregation, provided they would build thereon, within a reasonable time, a house of public worship. They deny that the German Lutherans were ever organized, as stated in the bill; or that any such church has been built; or that there has been any such possession or enclosure as the bill asserts; or that Charles Beatty ever made any conveyance of the property to transfer his title. They admit that the lot has been used as a grave yard, but not exclusively appropriated to the use of the Lutheran congregation. They admit that a building was erected thereon, but that it was used as a school house. They admit that the defendant, Beatty, is heir at law, and as such, that he claims the lot in question, and has authorized the defendant, Ritchie, to take possession thereof. They deny all the equity in the bill, as well as the authority of the plaintiffs to sue; declaring them to be mere volunteers, and demanding proof of their authority, &c.
The general replication was filed, and the cause came on for a hearing upon the bill, answer, exhibits and depositions; and the court decreed a perpetual injunction against the defendants, with costs. The appeal is brought from that decree.
Upon examining the evidence, it appears to us that the material allegations of the bill are satisfactorily established. It is proved that, shortly after the appropriation, and more *581 than fifty years ago, the Lutherans of Georgetown proceeded to erect a log house on the lot, which was used as a church for public worship, by that denomination of Christians; and was also occasionally, and at different times since, used as a school house under their direction. That at a much later period, a steeple and bell were added to the building; that the land was used as a church yard; that a sexton appointed by Lutherans had the direction of it; that more than half of the lot is covered with graves; and others as well as Lutherans have been buried there; that the Lutherans have caused the lot to be enclosed from time to time, as the fences fell into decay, and procured subscriptions for that purpose; that the possession of the Lutherans, in the manner in which it was exercised over the lot, by erecting a house, by public worship, by enclosing the ground, and by burials, was never questioned by Charles Beatty in his life time, or in any manner disturbed until a short period before the commencement of the present suit. That Charles Beatty in his life time constantly avowed that the lot was appropriated for the Lutherans, and that they were entitled to it.
The Lutherans have constituted but a small number in the town of Georgetown; they have not been able, therefore, to maintain public worship constantly in the house so erected, during the whole period; and sometimes it has been intermitted for a considerable length of time. But efforts have been constantly made, as far as practicable, to keep together a congregation, to use the means of divine worship, and to support public preaching. The house, however, in consequence of inevitable decay, fell down some time ago; the exact period of which, however, does not appear; but it seems to have been more than forty years after its first erection. Efforts have since been made to rebuild it, but hitherto they have not been successful.
The Lutherans in Georgetown, who have possessed the lot in question, are not and never have been incorporated as a religious society. The congregation has consisted of a voluntary society, acting in its general arrangement by committees and trustees, chosen from time to time by the Lutherans belonging to it. There do not appear to have been *582 any formal records kept of their proceedings; and there have been periods of considerable intermission in their appointment and action. There is no other proof that the plaintiffs are a committee of the congregation, than what arises from the statement of witnesses, that they were so chosen by a meeting of Lutherans, and that their appointment has always been acquiesced in by the Lutherans, and they have assumed to act for them without any question of their authority; that they are themselves Lutherans, living in Georgetown, and forming a part of the voluntary society, is not disputed.
There is decisive evidence also that the defendant Beatty has, since the decease of his father, repeatedly admitted the claim of the Lutherans to the lot, and his willingness that it should remain for them, as it had been originally appropriated. No assertion of ownership was ever made by him, until the acts were committed, which form the gravamen of the present bill.
Such are the material facts; and the principal questions arising upon this posture of the case, are, first, whether the title to the lot in question ever passed from Charles Beatty, so far at least as to amount to a perpetal appropriation of it to the use of the Lutheran church, or to the pious uses to which it has been in fact appropriated. And secondly, if so, whether it is competent for the plaintiffs to maintain the present bill.
As to the first question, it is not disputed that Charles Beatty did originally intend that this lot should be appropriated for the use of a Lutheran church in the town laid off by him. But as there was not at that time any church, either corporate or unincorporated, of that denomination in that town, there was no grantee capable of taking the same, immediately by grant. Nor can any presumption of a grant arise from the subsequent lapse of time, since there never has been any such incorporated Lutheran church there capable of taking the donation. If, therefore, it were necessary that there should be a grantee legally capable of taking, in order to support the donation in this case; it would be utterly void at law, and the land might be resumed at pleasure. *583 To be sure, if an unincorporated society of Lutherans had, upon the faith of such donation, built a church thereon, with the consent of Beatty, that might furnish a strong ground why a court of equity should compel him to convey the same to trustees in perpetuity for their use; or at least to execute a declaration of trust, that he and his heirs should hold the same for their use. For such conduct would amount to a contract with the persons so building the church, that he would perfect the donation in their favor; and a refusal to do it would be a fraud upon them, which a court of equity ought to redress. And if the town of Georgetown had been capable of holding such a lot for such uses, there would be no difficulty in considering the town as the grantee under such circumstances; since the uses would be of a public and pious nature, beneficial to the inhabitants generally. But it does not appear that Georgetown, in 1769, or indeed until its incorporation in 1789, was a corporation, so as to be capable of holding lands as an incident to its corporate powers.
If the appropriation, therefore, is to be deemed valid at all, it must be upon other principles than those which ordinarily apply between grantor and grantee. And we think it may be supported as a dedication of the lot to public and pious uses. The bill of rights of Maryland gives validity to "any sale, gift, lease or devise of any quantity of land, not exceeding two acres, for a church, meeting or other house of worship, and for a burying ground, which shall be improved, enjoyed or used only for such purpose." To this extent, at least, it recognizes the doctrines of the statute of Elizabeth for charitable uses, under which it is well known, that such leases would be upheld, although there were no specific grantee or trustee. In the case of The Town of Pawlet vs. Clarke, 9 Cranch, 292, 331, this Court considered cases of an appropriation or dedication of property to particular or religious uses, as an exception to the general rule requiring a particular grantee; and like the dedication of a highway to the public[(a)]. There *584 is no pretence to say, that the present appropriation was ever attempted to be withdrawn by Charles Beatty during his life time, and he did not die until about sixteen years ago. On the contrary, the original plan and appropriation were constantly kept in view by all the legislative acts passed on the subject of this addition. The plan was required to be recorded as an evidence of title, and its incorporation into the limits of Georgetown had reference to it. We think then it might at all times have been enforced as a charitable and pious use, through the intervention of the government as parens patriæ, by its attorney general or other law officer. It was originally consecrated for a religious purpose; it has become a depository of the dead; and it cannot now be resumed by the heirs of Charles Beatty.
The next question is as to the competency of the plaintiffs to maintain the present suit. If they were proved to be the regularly appointed committee of a voluntary society of Lutherans, in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession, under circumstances like those stated in the bill, we do not perceive any serious objection to their right to maintain the suit. It is a case, where no action at law, even if one could be brought by the voluntary society, (which it would be difficult to maintain,) would afford an adequate and complete remedy. This is not the case of a mere private trespass; but a public nuisance, going to the irreparable injury of the Georgetown congregation of Lutherans. The property consecrated to their use by a perpetual servitude or easement, is to be taken from them; the sepulchres of the dead are to be violated; the feelings of religion, and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded; and the memorials erected by piety or love, to the memory of the good, are to be removed so as to leave no trace of the last home of their ancestry to those who may visit the spot in future generations. It cannot be that such acts are to be *585 redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.
The only difficulty is whether the plaintiffs have shown in themselves a sufficient authority, since it is not evidenced by any formal vote or writing. If it were necessary, to decide the case on this point, we should incline to think that under all the circumstances it might be fairly presumed. But it is not necessary to decide the case on this point; because, we think it one of those cases, in which certain persons, belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others having the like interest, as part of the same society; for purposes common to all, and beneficial to all. Thus, some of the parishioners may sue a parson to establish a general modus, without joining all; and some of the members of a voluntary society or company, when the parties are very numerous, may sue for an account against others, without joining all[(a)].
And upon the whole we are of opinion, that the decree of the circuit court ought to be affirmed with costs.[(b)]
This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and decreed by this Court that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs.
NOTES
[(a)]  See also Brown vs. Porter, 10 Mass. Rep. 93; Weston vs. Hunt, 2 Mass Rep. 500; Inhabitants of Shapleigh vs. Gilman, 13 Mass. Rep. 190; Burrard's case, 12 Jac. C.B. 2 Mod. Ent. 413. b.
[(a)]  Cooper's Eq. Plead. 40, 41; Mitf. Plead. 145.
[(b)]  If a layman, by the dissolution of monasteries, hath a monastery in which there is a church, part of it, and he suffers the parishioners for a long time to come there to hear divine service, and to use it as a parish church; that shall give a jurisdiction to the ordinary to order the seats; because that now, in fact, it becomes the parish church, which before was not subject to the ordinary: adjudged 12 Ja. C.B.; Buzzard's case, 2 Mod. E. 413. 6.
