
    No. 14702.
    The City of Newark v. Burnette et al.
    Decided June 4, 1915.
    Error to Court of Appeals of Licking county.
    
      Mr. Ralph Norpell, city solicitor, and Messrs. F it zgibbon, Montgomery & Black, for plaintiff in error.
    
      Mr. D. B. VanPelt; Mr. C. A. Craighead and Mr. Owen A. Nash, for defendants in error.
    Judgment reversed. See journal entry.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; the court finds that the court of appeals erred in its conclusion that the plaintiff had abandoned said premises as a graveyard, and therefore erred in dismissing the petition of plaintiff; in entering a decree quieting the title of the defendants in said premises as against the plaintiff, and in requiring the plaintiff to remove water pipes, poles, electric light wires, lights, fountain, cement walks and cement steps from said premises.

The court finds that, notwithstanding interments have not been made in said graveyard for many years, and that many bodies previously buried there have been removed therefrom; it appearing that many bodies still remain, there has not been a complete abandonment of said premises to purposes inconsistent with its preservation as a graveyard.

The court further find that the improvements made by the plaintiff are not inconsistent with such use and preservation.

Coming now to make the decree which should have been entered herein by the court of appeals, it is hereby ordered and decreed that the title of the plaintiff in and to said premises — which shall be preserved and improved as ¿a. graveyard, but not otherwise — be and hereby is quieted as against the defendants, and all persons claiming through or under them, and the amended cross-petition of the defendants is dismissed, and the costs of this proceeding are adjudged to defendants in error.

Johnson, Donahue, Newman, Jones and Matthias, JJ., concur. Wanamaker, J., not participating.  