Legal Matters Affecting Cemeteries (2)

Date Published: 
August, 1906
Original Author: 
John E. Miller
Original Publication: 
AACS Proceedings of the 20th Annual Convention

The subject of "Legal Matters Affecting Cemeteries" has been considered of so much importance that your Program Committee has thought best to give it a place in this year's convention program, notwithstanding it was discussed at length at Washington. Whether they have been wise in appointing the same man to lead the discussion is an open question.

The importance of this subject needs no discussion. No superintendent who has had any experience has failed to find that out, and when you come to look over the field in which we are working, the different ways in which the cemeteries are organized, the differences in state laws, and court decisions and in many cases the entire absence of these laws and decisions, makes the subject only the more complicated. I suppose the conditions in Illinois are a fair sample of other states. Some are much better, others probably worse. In Illinois cemeteries that are operated under a charter direct from the legislature have their powers and privileges pretty well defined, but we have a very large class of cemeteries owned by cities and villages, and operated under city ordinances controlled, more or less, by party politics, that are not so fortunate. I speak from experience on this line when I agree with Mr. Pirie of Milwaukee, Wis., when he says, "To avoid legal difficulties, first make your location and organization permanent." In this paper I want to be as brief as I can, considering the importance of the subject and make my statements as clear and to the point as possible.

There are a few general cases where the courts of most all the states have decided practically alike.

1. That the cemetery lot belongs to the heirs of the deceased owner.
2. That the wife has the first right to the body of her deceased husband, or the husband that of his wife. I refer you to an opinion by Attorney Frank W. Grinnell, of Boston in "Park and Cemetery" of December, 1905 and January, 1906.
3. After a body has once been buried on a lot it can only be legally removed by the consent of the lot owner and the legal representative of the body so interred, and I might also add the health authorities of the state.

This question was thoroughly discussed at our Washington convention, and I need only refer you to our published reports. Now there is another class of questions which cannot be so easily settled. Most of our state laws say that cemetery associations shall have the power to make all reasonable rules and regulations for the government of the cemetery. Some of the states may specify how far the association may go in this direction, but the Illinois law does not. It simply says that all such rules and regulations must be subject to the rights of the lot owners. Now under this heading comes a number of very important questions. First, the reconveyance of lots without the consent of the cemetery association. I do not know how it is in other states, but in Illinois, the lot owner who gets a deed to the ground can go before a notary public and sell all or a part of it to anyone he pleases, and there is not a cemetery in the state that wants to test its legality in the courts.

Second, The assessment of the cemetery lot so much per year for annual care. Almost all cemeteries of any size have a rule requiring a payment from one to three dollars a year for annual care, but I have yet to learn of an Illinois cemetery trying to enforce it by law. And even in New York State as well posted an authority as Bellett Lawson, Jr., said in our last convention, that he did not believe that any law would stand that assesses the lot owners against their will. That if these assessments were proven legal and collectible it would leave a permanent tax on a cemetery lot which is contrary to all we have drilled into us about not taxing the land in which our dead are buried. Again, the question of the right of the lot owner to improve or beautify the lot by the erection of monumental work, planting of trees, shrubs, flowers, etc. Now I do not mean what is the custom but what is the law, if any, on the subject. I do not know what it may be in other states, but in Illinois the rights of lot owners can only be settled under the general law of the state and we have very few precedents. I know my brother superintendents, Carter, Rudd, Tilton and others are pretty successful in enforcing these rules, but it is done by moral suasion and not by law. Now these are all important questions and affect not only the beauty of the cemetery but its records and finances also, and should be settled in each state by statute,

Then there is the question of trespass and damages for personal injuries. One interesting case has just been decided by the appellate court in Chicago, in which Mt. Greenwood cemetery was made defendant for damages by a lady who received severe injuries, by stepping in an open tile drain within the cemetery. The court decided the cemetery was not liable on the ground that the evidence showed that the open tile was not on any public walk or drive and that the plaintiff was trespassing. Another important legal question is the safeguards that should be thrown around our "trust funds." We accept money for the perpetual care of lots, and in justice to the lot owner these funds should be made as secure as possible. I presume each state has its own laws en the subject.

The Illinois law is that all cemetery trust funds shall be vested in the board of directors and shall be invested by them in safe, interest bearing securities, and said board of directors shall make an itemized report of all such funds in their hands and securities taken therefore every two years, to the county judge in which the cemetery is located.

Again the question of the legal protection of our cemeteries. It is true we have ample police protection within the grounds but there are so many things that are very annoying and some positively detrimental to the interests of the cemetery without the gates, which the cemetery police cannot control.

It is no use to enumerate them here as they are common to all city cemeteries. Now you may say “What is the remedy and how can we improve our cemetery laws”?

First, I would say to each superintendent make yourself thoroughly acquainted with the cemetery laws of your own state.

Second, Become an active member of our National Association, read Park and Cemetery, and keep in close touch with as many of our most progressive superintendents as possible.

Third, Form an organization of as many of the leading cemeteries of your state as possible if you do not already have one, and through your judiciary committee secure such additions to your cemetery laws as will meet urgent demands.

We of the Illinois Association of Cemeteries have succeeded in getting one important bill through the legislature and have several more pending which we hope and expect to have passed this winter, and as our numbers and influence increase we confidently expect to see such legislation enacted as will be of great and lasting benefit to the cemeteries of the state.

From the publication:
AACS - Proceedings of the 20th Annual Convention
Held at Detroit, MI
August 21, 22 and 23, 1906