The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter XXXIII. Cemeteries

421. Statutes, Land.—There are sufficient statutory provisions on cemeteries to make a large book, and the frequent changes made in such laws render a full statement of the law impossible. The statutes against locating cemeteries near cities, dwellings, etc., should be carefully examined before buying land therefor.[755]

422. United States, Jurisdiction.—The jurisdiction over the United States cemeteries is in the State where the cemeteries are located unless such jurisdiction has been ceded to the United States.[756]

423.. Tombstones, Soldiers.—The United States will erect tombstones at the graves of soldiers who served in the Civil War, in all cemeteries where their graves are unmarked. Wherever the United States has jurisdiction over cemeteries, it has made it a criminal offense punishable by fine or imprisonment to deface a tombstone.[757]

424. Indigent Soldiers, Tombstones.—Most of the States have statutes providing for the burial of indigent soldiers and for putting tombstones at their graves. The attention of relatives of deceased soldiers should be called to it.

425. State Authority.—The State Legislature has authority to control cemeteries or delegate that authority to some one else, and afterward to transfer it to a different person.[758]

426. Maryland, Two Acres.—Although the declaration of rights of the State of Maryland restricted the sale of lands for a cemetery for a church to two acres, the Legislature has power to grant leave to a cemetery association to take title to more land. And where the trustees bought twelve acres of land for a burial ground and a subsequent act of the Legislature authorized the enlargement of the cemetery not to exceed twenty-five acres, the title to the excess of the valid purchase was ratified and the title vested in the trustees.[759]

427. Consent, Application.—Where a statute provides that no cemetery shall be laid out without first obtaining the consent of the municipal authorities thereto, a written [pg 224] communication signed by the officers of an incorporated society is sufficient application; and a motion granting consent adopted by the city council is sufficient action on its part to comply with the statute.[760]

428. Charter, Ground, Members.—An application for a charter to incorporate a cemetery need not specifically locate the ground.[761] The charter or the articles of incorporation, or by-laws made under them, generally determines who shall be members of the corporation. And where every owner of a lot signing the constitution and by-laws becomes a member, the trustees can not vote on the unsold lots.[762]

429. Police Power, Trespass, Burial.—Under our laws the State, by reason of its police power, has control over the cemeteries within it. However, that power has generally been very favorably exercised. Laws both civil and criminal have been enacted to protect cemeteries from invasion and trespass and to protect tombstones from injury.[763] When authorized by the Legislature a city may make a by-law prohibiting burial within its limits, notwithstanding that the cemetery [pg 225] has been constantly used for over one hundred years.[764] Also, the city has authority to protect and regulate the use of a cemetery.[765]

430. Dwelling, Limits.—Most of the States provide that no cemetery shall be laid out within a certain limit of a dwelling. But after the cemetery is established a man can not have it moved when he puts up a dwelling within the limits or where he consented to the cemetery at the time it was established.[766]

431. Well, Pollution.—And where a man had built a dwelling near a cemetery, it was not good ground for him to prevent the enlargement of the cemetery by showing that it might destroy his well. The court questions whether there is any legal ground for complaint for the pollution of subterranean waters when caused by the proper use without negligence of the adjacent premises.[767] Additional lands may be obtained under the law of eminent domain by condemnation.[768]

432. Exempt, Execution, Mortgage.—The statutes in most of the States exempt the tombstones and lots in a cemetery from sale on execution.[769] Also, a cemetery lot can not be sold under mortgage after bodies have been buried therein, as any one may be arrested for desecration of graves.[770]

433. Public, Regulation.—The right to bury in a public cemetery is a privilege or license that is subject to municipal regulation, and revocable whenever the public necessity requires it.[771]

434. Nuisance, Public Health, Disease.—A cemetery is not a nuisance per se, but if it is proved that the burial of dead bodies in a certain cemetery does injure the public health and is a fruitful source of transmission of disease, the State may prohibit such burial at certain places within cities or adjacent to dwellings. But unless authorized by the Legislature a council has no right by ordinance to provide that no one shall be buried within half a mile of any habitation or public thoroughfare.[772] And where the [pg 227] Legislature authorized a city to remove the bodies interred and allow streets through the land, it had authority to do so.[773]

435. Devise, Easement, Rules.—The general rule of law is that a man can not devise away a cemetery lot in which members of his family are buried. He owns only a license or at the most an easement which is subject to the rules of the cemetery association and the police power of the State. However, there are some exceptions.[774]

436. Conditions.—A condition in a deed that the lot can not be sold, assigned, or transferred without consent of the cemetery corporation, is as good and binding as in any other conveyance of real estate.[775]

437. Inherits, Right.—Where a son inherits from his father the right to burial in a cemetery lot, he has the right to remove and inter therein the bodies of his grandmother and sister who had been buried elsewhere.[776]

438. Certificate.—A certificate was issued for the burial of Dennis Coppers in the following form:

“Office of Calvary Cemetery,

New York, December 1, 1873.

RECEIVED from Mr. Dennis Coppers, seventy-five dollars, being the amount of purchase money of a plot of ground 8 feet by 8 feet, in Calvary Cemetery.

D. BRENNAN,

Superintendent of Calvary Cemetery.

4 Graves, 5, 6, 7, 8, Plot D, Section 7, Range 35.”

439. Freemason, Title, Right.—Prior to 1879, the mother, wife, and other relatives of Coppers, who were Roman Catholics, were buried in the lot covered by the deed given in the last paragraph. Coppers, who was a Freemason, died in August, 1879, and his funeral services were held under the auspices of the Masons from an Episcopal church, as directed in his will. The rules and doctrines of the Church forbid the burial in consecrated ground of the body of one who was not a Roman Catholic or who was a member of the Masonic fraternity. The Church authorities refused to allow Coppers to be buried in the cemetery, and application was made by his relatives for a [pg 229] writ of mandamus to compel his interment therein, they having deposited the necessary money to pay all the expenses. The court held that the certificate delivered to Coppers was not a conveyance nor a grant and did not vest title to the land in him, and that the cemetery could not be compelled to execute and deliver to him an absolute conveyance of the lot. His only right under the certificate was the use of the lot for burial purposes subject to and in conformity with the established rules and by-laws of the corporation in so far as they were not in violation of any law. It is the tacit understanding, when a person applies for a burial lot in a cemetery of the Catholic Church, that he is either a Catholic and as such is eligible to be buried therein, or that he applies in behalf of those who are in communion with the Church.[777]

440. Lots, Fee.—If the cemetery association sells 400 lots to one man and makes a conveyance in fee thereof, it is bound thereby.[778]

441. Deed, Privilege, Heirs and Assigns.—No formal deed is necessary to confer exclusive right to the use of a cemetery lot for [pg 230] burial purposes.[779] And certificates of lots issued by a corporation convey no title to the land, as they are not in the form necessary to constitute a conveyance of land. Their only effect is to grant the privilege of interment so long as the ground continues to be used for the purposes of burial.[780] A deed of a cemetery lot “to him, his heirs, and assigns forever,” gives only an easement in the freehold, and does not give title to the soil, and is subject to changes made necessary by altered circumstances.[781]

442. Access, Purposes.—Title to a cemetery lot gives the right of access to it for the usual purposes, including putting up monuments.[782]

443. Monuments, Inscriptions, Drunkenness, Non-Baptized, Strangers.—The plaintiff obtained from the defendant a deed, which, among other things, contained the following conditions: “that such lot shall not be transferred without the consent of the trustees; shall be subject to the regulations made, or to be made, in the care and management of such cemetery by the trustees, who shall also have the right to prevent [pg 231] the erection of offensive and improper monuments or inscriptions thereon, and shall retain the right to enter any lot for the removal of anything objectionable; that no remains shall be deposited therein for hire; and that persons dying in drunkenness, duel, or by self-destruction, non-baptized, non-Catholic, or otherwise opposed to the Catholic Church, shall not be therein interred.” The plaintiff had buried his father and one of his children in the lot, and brought his wife's remains there for burial. Upon the arrival of the funeral, two small coffins of strangers, one of which bore the name “John McDonald,” which the grave-digger had taken up, were at the side of the grave. There was nothing to show how those bodies came to be buried there. The plaintiff brought suit for damages against the cemetery association. The court held that the cemetery association was liable and that the defense that it was a public charitable organization could not be sustained.[783]

444. Use, Forfeited.—When a deed is made of land for the use of a cemetery only, it will be forfeited by using it for a school.[784]

445. By-Laws, Member, Burial.—Where a by-law of a church association provides [pg 232] that any member who pays one dollar to have his name entered in the record shall be entitled to a burial lot, a member who had paid one dollar to the committee of the church before the adoption of such by-law but had ceased to be a member of the congregation, has no right to a burial lot.[785]

446. Adverse Possession.—If the original title to a cemetery is defective, the title may become good by adverse possession.[786]

447. Improvements.—The owner of a lot, unless some rule of the cemetery association or law of the State is to the contrary, may improve it as he sees fit so long as he does not injure the property rights of another.[787]

448. Trespass, Injunction.—An action for damages quara clausum fregit, can be maintained by a relative against any one who trespasses upon a grave of a person lawfully interred.[788] Also, a relative may enjoin by suit in equity, on behalf of himself and others equally interested, interference with graves in his cemetery lot.[789]

449. Roads, Alleys.—Most of the laws relating to highways apply to cemetery roads and alleys, excepting that when a road or alley in a cemetery is vacated the land reverts to the cemetery instead of becoming parts of the adjoining lots.[790] In most of the States a road can not be laid out through or take a part of a cemetery.[791] But a public highway may be established through a cemetery by user, the same as over other lands.[792]

450. Abandoned, Bodies.—When a cemetery has been abandoned, those who have relatives buried there may incorporate it for preservation.[793] Also, a corporation may change its cemetery and remove the bodies interred therein.[794]

451. Two-Family Lot, Control.—Where a lot is owned jointly by two families, one burying in the north half and the other in the south half, the family burying in the north half can not prevent the burial of a [pg 234] member of the other family in the south half, if entitled to be buried in that cemetery.[795]

452. Burying Dogs, Removal.—A person who has a lot in a cemetery has no right to bury any but human bodies therein, and one who has buried a pet dog in her lot may be compelled to remove it.[796]

453. Stranger, Protest, Kin.—One member of a family can not authorize the burial of a stranger in a family lot where his parents are buried and against the protest of any other relative of equal or nearer degree of kin.[797] When an owner of a lot has consented to the burial of a body therein, he can not afterward remove the body or deface the tombstone, and to do so would be a criminal offense.[798] When a lot is sold to one person, the cemetery association has the right to limit interments to members of the family owning the lot. However, where there is nothing concerning it in the laws or rules of the association, it might be different.[799]

454. Association, Bishop, Stipulation, Certificate, License, Revocable.—The Germans of Cincinnati formed an association [pg 235] and purchased ten acres of land for a cemetery “for German immigrants, their families, and relatives, of Cincinnati and its vicinity, who might be members of the Catholic Church and in accordance with the doctrine, discipline, usage, and ceremonies of the same.” They incorporated with fifteen trustees to be elected annually. Before he would bless the cemetery, the bishop required and the committee stipulated with him in writing the following: That the rules of the Catholic Church should always be faithfully observed in this chiefly: First, that no one should be buried in the ground who had not been baptized or who died out of communion of the Catholic Church, to which the bishop or in his absence the clergy of the German Catholic Church or churches, should be the judge; second, that no poor person should be denied a place therein because his parents were unwilling to pay; third, that any money accrued from the ground should be expended for pious uses and specifically for the relief of the German Catholic poor; fourth, that the remains of persons interred in Catharine Street burial-ground might be removed to the new ground. The bishop subsequently closed the cemetery as a place for burial of Catholics because the congregation had violated [pg 236] the stipulation: “First, by admitting those to burial who died out of the communion of the Catholic Church; second, by refusing to poor persons the right of burial; third, by expending the funds of the association in other than pious uses and relief of the poor.” The court held that the corporation had authority to determine that the cemetery should continue to be used as such, but the conditions might be enforced by any one interested.[800] Also the question was brought before the court in a case where a man had fallen away from the Church, and the court held that the certificate was a mere license giving no property rights, and revocable; and that the question as to whether the party to be buried therein was in communion with the Church, was one over which the Church itself had exclusive jurisdiction.[801]

455. Rules, Diocese.—One who buys the privilege of burying his dead in a cemetery acquires no general right of property, but only a right to use the grounds as a place of interment, and the rules governing a cemetery in force at the time the privilege is acquired measure the extent of the use. Where a rule of the church having charge of the cemetery forbids the burial of non-Catholics [pg 237] therein, the bishop of the diocese and the local priest, who according to the usage of the church were vested with control, had authority and power to restrain a holder of a lot from interring the body of his son who was not in communion with the church at the time of his death, and who committed suicide.[802]

456. Negroes, Indians.—The fact that a man is a negro, Indian, or other racial human being, is not good ground to prevent his burial in a cemetery.[803]

457. Will, Body, Custody.—Where no disposition of a body has been made by will, the surviving husband, or wife, or next of kin, has the right to the body for the purpose of burial. But the right of the surviving wife or husband, if they were living together at the time of the death of deceased, is paramount to that of the next of kin.[804] A right to the custody of the body of a deceased relative and to decide upon the final place of burial where the deceased is unmarried, [pg 238] is in his next of kin, and this right will be protected by the courts.[805]

458. Non-Residence, Burial.—Non-residence does not divest a person of the right to burial with his relatives.[806]

459. State, Vacate, Equity, Rule.—The State may require the removal of the bodies and vacate a cemetery without compensation to lot owners in some extraordinary cases of eminent domain or as a health measure.[807] Courts of equity exercise some discretion in cases that do not fall within this rule.[808] But the superintendent of a cemetery has no right to remove a child without the consent of the father who owns the lot.[809]

460. Consent, Bishop, Removal.—With the consent of deceased's husband before the funeral, the father of deceased paid for the lot in which his daughter wished to be buried with her parents. Her mother being dissatisfied with the location, the lot was [pg 239] subsequently exchanged for another in the same cemetery; but after preliminary arrangements had been made, the son-in-law applied to a court of equity for a writ restraining the father and the bishop from removing the body. The bishop answered that he was willing to conform to any order of the court. The court held that by acceding to his wife's request and allowing her father to bury her in the first instance, and by standing mute while the arrangements for the removal of the body were being made, the husband had no right thereafter to prevent the removal of his wife's body.[810]

461. Court, Remove, Consent.—In a proper case a court may grant a decree to remove the body of a relative from one cemetery to another.[811] Otherwise no one has the right to exhume or remove a body without the consent of those having charge of the cemetery and of those having the right of burial, as consort or the next of kin. In some States the offense is a felony.[812] In Nebraska, at least, those who have the legal right to bury a relative may remove his body [pg 240] from one Catholic cemetery to another without the consent of the bishop.[813]

462. Crime, Fraud, Exhume, Autopsy.—In an action on an insurance policy where there is evidence of fraud, as death by poison, a court may order a body exhumed for examination, although the person having the right to control the burial of the body is not a party to the suit.[814] Public officials have the right to disinter a body to ascertain whether a crime has been committed.[815] But without a coroner's inquest or consent of the surviving consort or next of kin, a doctor has no right to perform an autopsy.[816]

463. Tort, Corpse.—The general rule is that an action of tort may be maintained by the widow or next of kin for the mutilation of a corpse or even for negligently exposing it to the elements.[817] In a few cases the right has been denied.[818]

464. Custodian, Burial, Mutilation.—In the absence of a widow, a son is the lawful [pg 241] custodian of the body of his deceased father for preservation, representation, and burial, and may maintain an action for unlawful mutilation thereof. The sense of outrage and mental suffering resulting directly from the wilful mutilation of the body of a parent, is a proper independent element of compensatory damages.[819]

465. Property in a Corpse, Mummy, Executors.—The question of property in a corpse has been generally denied. However, in case of a mummy which has become an object of curiosity, the case may be different. Where a testator ordered his body burned and the executor presented a bill for £321 for doing so, the court disallowed it on the ground that when a man is dead his next of kin or executors have the right to dispose of his body; but that as it is not property, a man has no right to bequeath it for a particular purpose.[820] Also, where a man was in jail and died during his imprisonment and the jailer refused to give up the body until the debt was paid, the court held that there was no property in the corpse, and therefore there could be no lien upon it and he must surrender it.[821]

466. Rights, Duties, Body, Will.—While there is no property in a dead body so that it may be sold, there are rights and duties out of which may arise tort and criminal actions. The question of the right of a man to dispose of his body by will is not well settled in this country.[822] There are many cases that hold that a person has the right to make a binding testamentary disposition of his own body after death.[823] But on the contrary it has been held that one can not by his will confer any right as to the disposition of his body.[824]

467. Monument, Fence.—Giving the right to bury in one's cemetery lot carries with it the right to erect a monument; but it does not carry with it the right to fence the cemetery lot or interfere with other graves therein. Therefore, the monument must be of such size and so located and erected as not to interfere with the rights of others.[825]

468. Tombstone, Mother-in-Law.—A husband has the right to remove a tombstone that his mother-in-law put over his wife's grave, and put up one of his own choice [pg 243] instead.[826] The general rule is that vaults and tombstones are personal property and may be removed “in good faith and with care and decency” by the next of kin.[827]

469. Trees, Authority.—It is a criminal offense to cut trees in a cemetery without right or authority.[828]

470. Charitable, Institution, Negligence.—A Catholic cemetery without capital stock or shares and paying no profits nor dividends, does not come under the head of a charitable institution so as to relieve it from liability for negligence.[829]

471. Equity, Repair, Injuries.—A cemetery association may by bill in equity be forced to keep walks and drives in good repair and consequently is liable for injuries resulting from its negligence.[830]

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