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

by Charles Martin Scanlan

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]