in a cemetery lot is the only possession, when claimed and known, necessary to ultimately create complete ownership of the easement so as to render it inheritable; and, so long as gravestones stand marking the place as burial ground, the possession is actual, adverse, and notorious": Hook v. Joyce, 94 Ky. 450. "When one is permitted to bury his dead in a public 521 cemetery, by the express or implied consent of those in control of it, he acquires such a possession in the spot of ground in which the bodies are buried as will entitle him to an action against the owners of the fee or strangers who, without his consent, negligently or wantonly disturb it. This right of possession will continue as long as the cemetery continues to be used": Bessemer Land Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26. As a general rule, one who purchases and has conveyed to him a lot in a public cemetery does not acquire the fee to the soil, but only the easement or license of burial therein. But, as we have seen, so long as he is in the rightful possession of the lot, or holds title to the usufructuary interest therein, he may maintain an action against anyone who wrongfully trespasses upon it. The rule is well established that one entitled to maintain the action may recover damages from any person who wrongfully trespasses upon, desecrates, or invades the burial lot of another: 1 Am. & Eng. Ency. of Law, 2d ed., 794; Trustees etc. v. Walsh, 57 Ill. 363, 11 Am. Rep. 21; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Partridge v. First Independent Church, 39 Md. 637; Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409; Thirkfield v. Mountain View Cemetery, 12 Utah, 76; Hook v. Joyce, 94 Ky. 450; Bessemer Land Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26. In the present case, the plaintiffs were not only in possession of the lot at the time of the alleged trespass by the defendant, but, as the heirs at law of Jacob Jacobus, they had a complete title to the easement of burial therein by prescription; for the graves containing the remains of their brother and sister had been upon the lot, undisturbed, for nearly forty years. The presence of these graves, marked with headstones, upon the lot rendered the possession, which commenced in Jacob Jacobus when he buried the first body upon it, actual, adverse, and notorious; and it was continuous until disturbed by the defendant in 1895.

2. In a suit for damages for disinterring a dead body, if the injury has been wanton and malicious, or is the result of gross negligence or a reckless disregard of the rights of others, equivalent to an intentional violation of them, exemplary damages

may be awarded: 1 Am. & Eng. Ency. of Law, 2d ed., 794; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Thirkfield v. Mountain View Cemetery, 12 Utah, 76. 522 Where such an action is maintainable, the injury to the natural feelings of the plaintiff may be taken into consideration in estimating the damages which he has sustained: Cooley on Torts, 240; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Bessemer Land Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26. Our own code provides that: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff": Civ. Code, sec. 3906. According to the allegations of the petition this was clearly a tort, in which there were aggravating circumstances. It was, as made by the petition, a case in which a jury could rightly have awarded exemplary damages.

3. Irrespective of the plaintiff's title to the easement, or their possession of the lot, the petition stated a good cause of action for damages for the removal of the gravestones. If a gravestone or monument which has been erected upon a cemetery lot is defaced or removed during the lifetime of the person who erected it, he may, at common law, recover damages from the one who inflicted the injury; but if the injury is inflicted after his death the heirs at law of the person to whose memory the gravestone or monument was erected are entitled to maintain the action: Day v. Beddingfield, Noy, 104; Spooner v. Brewster, 3 Bing. 136; Sabin v. Harkness, 4 N. H. 415, 17 Am. Dec. 437; Matter of Brick Presbyterian Church, 3 Edw. Ch. 155; Mitchell v. Thorne, 134 N. Y. 536, 30 Am. St. Rep. 699; Pierce v. Proprietors, etc., 10 R. I. 227, 14 Am. Rep. 667. If these gravestones were erected by Jacob Jacobus to mark and designate the graves of his children, then if they had been injured or removed during his lifetime, he would have had a right of action against whoever inflicted the injury. While it is not distinctly averred that he did erect them, we think it is a fair presumption that he did, from the fact that he was the father of these infant children, purchased the lot, and had their bodies interred therein. After his death, the right to sue for a trespass committed by defacing or removing the gravestones was in the heirs at law of the persons to whose memory the stones were erected, that is, the heirs at law of the children whose remains 523 were interred in the graves. Whether the plaintiffs, or either of them, were in life at the time that either of

these children died, does not appear from the petition; but, if they were not, the father and mother became heirs at law of the deceased children, and at the time the stones were removed by the defendant the plaintiffs were the heirs at law of both the father and the mother. So the right of action belonging to the heirs at law of these children, for the trespass committed by the removal of the gravestones, was in the plaintiffs at the time this injury was inflicted. This is clear when we consider that a monument or gravestone which designated the grave of a particular person was considered by the common law in the nature of a family heirloom, and for this reason the common law, after the death of the person who erected it, gave to the heirs at law of the person in whose memory the stone was set up the right to maintain an action against anyone who injured or removed it.

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4. The mere fact that the plaintiffs added to their prayer, "that the nominal sum of two hundred and fifty dollars, as exemplary damages, be awarded your petitioners," the words, "as expenses of bringing these proceedings," does not alter the case. These words can be treated as mere surplusage, the statement of the cause of action being complete without them. They could be stricken and the cause of action would remain. Their presence does not have the effect of destroying what would otherwise be a good cause of action. It matters not to purpose the plaintiffs intended to devote the amount which they might recover as damages. They might, if they saw fit, use the whole of the amount recovered by them in paying counsel fees and other expenses of litigation, incurred by them in bringing and prosecuting to a successful issue the suit to establish and vindicate their rights, which seems to have been. their main purpose, and a mere declaration in the petition of a purpose on their part to so use the sum which they might redamages could not affect their right to recover such damages. Of course, anything that the defendant did, after the suit was filed, by way of amends for the injury which it had inflicted upon the plaintiffs, unless accepted by the plaintiffs 524 as a settlement of the case, would not affect the cause of action, though it might be a circumstance which could be shown in mitigation of the amount to be allowed as damages. As the petition set forth a good cause of action, the court erred in sustaining the motion to dismiss it.

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Judgment reversed.

All the justices concurring.

AM. ST. REP., VOL. LXXIII.-10

CEMETERIES-DAMAGES FOR REMOVAL OF REMAINS.One who buries his dead in soil to which he has a freehold right and the right of possession can maintain an action quare clausum fregit against a person who disturbs the grave; so can one who has buried his dead in a public cemetery maintain such an action against the owners of the fee or strangers, who negligently or wantonly disturb the grave; and, in an action to recover damages for the unlawful removal of plaintiff's child from its burial place, the injury to the natural feelings of the plaintiff may be considered by the jury in estimating the damages: Bessemer Land etc. Co. v. Jenkins, 111 Ala. 135, 56 Am. St. Rep. 26.

CEMETERIES-DAMAGES FOR INJURY TO GRAVESTONES. The heirs of a decedent, at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or removes the same: Mitchell v. Thorne, 134 N. Y. 536, 30 Am. St. Rep. 699.

DAMAGES.-Expenses of litigation are not an element of compensatory damages, and can be considered only in those cases in which exemplary damages may be awarded: Maisenbacker v. Society Concordia, 71 Conn. 369, 71 Am. St. Rep. 213.

SOUTHERN EXPRESS COMPANY v. STATE.

[107 GEORGIA, 670.]

INTOXICATING LIQUORS "FURNISHING"-WHAT IS NOT.-A carrier who transports intoxicating liquors under a contract to carry and deliver the goods to the consignee at their destination does not, by such transportation and delivery, violate a statute providing that it shall be unlawful "for any person to sell, either directly or indirectly, or furnish at any place of business, or any public place, by any device whatever, any intoxicating liquors."

F. G. du Bignon, for the plaintiff in error.

S. P. Maddox, solicitor general, for the defendant in error.

670 LITTLE, J. The grand jury of Bartow county returned a special presentment against the plaintiff in error, charging it with a misdemeanor. The specific allegation of such charge is, that the plaintiff in error, on the first day of November, 1898, in Bartow county, being a corporation there doing business, did unlawfully furnish, to certain persons named, intoxicating, alcoholic, and malt liquors, at the office of the plaintiff in said 671 county, the same being a public place. The case was tried under an agreed statement of facts, which was, in substance, that the plaintiff in error was a common carrier; that as such it received, by its agent at Cartersville in said county, and at its office which was located in the depot of the

Western and Atlantic Railroad, a public place, packages of spirituous liquors in jugs and bottles, for various parties resident in Bartow county, and delivered these articles to the persons to whom they belonged. The shipments of such articles were made from points within the state of Georgia where the sale of such liquors is authorized by law. The shipments were not made collect on delivery, nor were any special conditions or instructions attached. The parties to whom the articles belonged, and to whom they were consigned and delivered, paid the agent of the plaintiff in error, at the time of the delivery, only the express charges for transportation. Under the charge of the court, the jury returned a verdict of guilty against the plaintiff in error. It made a motion for new trial, on the ground that the verdict was contrary to law and to the evidence, and because the court erred in charging the jury that, if the jury believed the facts submitted under the agreed statement, the plaintiff in error was guilty of the offense charged in the indictment. The motion for new trial was overruled, and exception taken to this action of the court. No question is made on the legality of the special presentment, nor on the liability of the plaintiff in error to be so charged and tried. The special presentment was based on an act of the general assembly, admitted to have been in force in Bartow county at the time named, which provides as follows: "It shall not be lawful for any person or persons to sell, either directly or indirectly, or furnish at any place of business or any other public place, by any device whatever, any intoxicating, alcoholic, spirituous, vinous, or malt liquors within the limits of said county." The act contains a proviso to which it is not necessary that reference should be here made.

The evident object of this act was to curtail and restrict the use of intoxicating and malt liquors in Bartow county. It entirely prohibits any sale of such liquors. It also prohibits. the furnishing at any place of business or other public place 672 in said county, by any device whatever; and the single question presented to us for determination is, What is the legal meaning and significance of the word "furnish," as used in the statute? That meaning and significance, of course, which the lawmakers intended it should have must be given to it. The primary object being to restrict the use of liquors, and the sale and purchase being the method by which the use is most generally extended, the general assembly forbade the sale absolutely, but went farther, in order to accomplish the purposes intended,

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