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Trustees of First Presbyterian Church v. Alling

Decided: February 13, 1959.

THE TRUSTEES OF THE FIRST PRESBYTERIAN CHURCH IN NEWARK, A CORPORATION, PLAINTIFF,
v.
DAVID ALLING ET AL., DEFENDANTS



Sullivan, J.s.c.

Sullivan

[54 NJSuper Page 142] Plaintiff, the Trustees of the First Presbyterian Church in Newark, a New Jersey Corporation, owns a tract of land on Broad Street, Newark, New Jersey, on which are erected a church and a parish building. It is one of the oldest churches in the city, having been erected prior to 1800. Just adjacent to and in the rear of the church and parish building is an old burying ground or cemetery also owned by plaintiff.

Plaintiff holds title to the burying ground by virtue of a judgment quieting title to said property based on adverse possession and entered in this court on March 25, 1957. Prior to said judgment, and with a few minor exceptions, there was no record title to these lands in plaintiff, although there is some indication that the church did purchase a burying ground in the rear of the church about 1790. Since then and in the intervening years the area has been added to and enlarged. What happened was that owners of lands adjacent to the cemetery established family burial plots on their own property and next to the church burying ground. Subsequent conveyances of these lots did not include the burial plots, which simply became part of the church cemetery but without any formal conveyance. Other owners of adjacent property subdivided part of their holdings into burial plots and presumably sold them off. For example, there is on record a filed map covering part of the present cemetery area and entitled as follows: "First Church Burying Ground. Map of Ground thrown into the enclosure of the First Presbyterian Church Burying Ground 17th April 1835, divided and numbered for burying lots according to the lines and dimensions of this map by Amos Day." There are not any restrictions as to use of record, for any part of the present cemetery area. Nor is there any record of any formal dedication of such property for burial purposes.

When plaintiff brought suit in 1956 to quiet title to the present cemetery grounds based on adverse possession, there were joined as parties defendant, known and unknown persons who might have an interest in the property. On March 25, 1957 a judgment was entered quieting title to said property in plaintiff.

At the present time, therefore, plaintiff is the owner of this property which is subject to a trust or dedication for burial purposes. This suit is, in essence, an application by plaintiff to obtain court approval of a plan to abandon the further use and maintenance of the greater part of the cemetery grounds as such, and thereafter use or dispose of the same free of any dedication for burial purposes.

It is difficult to obtain any precise information about the cemetery itself. There are no adequate records kept by the church or anyone else, and it is impossible to ascertain the number of interments, the locations of the particular graves, or who is buried there. About the only records available are the gravestones themselves, and the inscriptions on most of them are wholly or partially illegible. A great many stones are broken or missing. Many have been moved from their original location.

In 1898 the church did have a compilation made of the gravestones and the inscriptions thereon. Even then it appears that many of the stones were in a deteriorated condition and the inscriptions thereon unreadable. The 1898 survey indicates that there were about 1,300 interments as shown by the stones. Most of the burials were prior to 1850 with only a few since then. Minutes of board meetings indicate that in 1887 the board of trustees of plaintiff church passed a resolution forbidding any further interments in this cemetery.

Over the years the burying ground has deteriorated in appearance. It does not receive any care at all except in the summer time when the grass is rough cut to prevent the area from becoming completely overgrown. Any semblance of paths or walks has become completely obliterated. Boundary markers for the individual plots are broken, missing, or moved. In addition to the underbrush and debris which has accumulated in many areas, numerous large trees have grown up throughout the cemetery. These have in turn dislodged and moved grave stones and markers. The picture presented is lack of adequate care over a great period of years to the point where now, as a practical matter, it is impossible to restore the cemetery.

There is no perpetual care fund of any kind and no one assists the church in any way in caring for the place. To rehabilitate and maintain it to any degree of respectability under the circumstances would require the expenditure of substantial funds on an annual basis. The trustees plaintiff feel

that the church income, which is limited, should be devoted to more worthwhile purposes.

The burying ground is completely landlocked. It is bounded on the east by the rear of lots facing on Mulberry Street. It is bounded on the south by the Broad Street Central Railroad Terminal. On the north it is bounded by the rear of lots facing on Edison Place. On the west is the church itself and parish building. No one can visit the cemetery except by going through the church buildings and out a rear door. Because of this it has been possible to note any visits ...


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