CEMETERY. A place set apart for the burial of the dead. Cemeteries are regulated In England and many of the United States by statute.
After ground has once been devoted to this object it can be applied to secular purposes only with the sanction of the legislature; L. R. 4 Q. B. 407 ; Sohier v. Church, 109 Mass.l.
An abandoned cemetery; from which all the bodies had not been removed, cannot be sold ; Ritter v. Couch (W. Va.) 76 S. E. 428, 42 L. R. A. (N. S.) 1216. A cemetery associa tion holds the fee of lands purchased for the purposes of the association. The persons to whom lots are conveyed for burial purposes take only an easement—the right to use their lots for such purposes ; Buffalo City Ceme tery v. Buffalo, 46 N. Y. 503 ; People v. Trus tees of St. Patrick's Cathedral, 21 Hun (N. Y.) 184; Washb. Eason. 604; Sohier v. Church, 109 Mass. 21; Price v. Church, 4 Ohio 515; it resembles the grant of a pew in a church ; Jones v. Towne, 58 N. H. 462, 42 Am. Rep. 602 ; Sohier v. Church, 109 Mass. 1. It is a mere (exclusive) usufructu ary right, subject to the conditions of the charter and by-laws of the cemetery com pany ; Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769. It is in the na ture of an easement ; id.; se is the right to burial in a particular burial vault; 22 Beay.
596; capable of being created by deed only ; 8 B. & C. 288 ; but it can be created by pre scription; Hook v. Joyce, 94 Ky. 450, 22 S. W. 651, 21 L. R. A. 96. It has been held to be a license ; Buffalo City Cemetery v. Buf falo, 46 N. Y. 503 ; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481. A statute directing a removal of bodies, without providing com pensation to the lot owners, is constitutional ; Went v. Church. of Williamsburgh, 80 Hun 266, 30 N. Y. Supp. 157. In the absence of a deed. or certificate equivalent thereto, they are mere licensees; 8 B. & C. 288. Non-resi dence does not divest an heir at law of an easement In a burial lot while the grave stones of his parents remain ; Hook v. Joyce, 94 Ky. 450, 22 S. W. 651, 21 L. R. A. 96. Their rights cease when the cemetery is vacated, as such, by authority of law ; Part ridge v. Church, 39 Md. 631; Craig v. Church, 88 Pa. 42, 32 Am. Rep. 417; and the owner of a lot in which no interments have been made, loses all use of it by the passage of a law making interments therein unlawful ; Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377. An act declaring it unlawful to open a pub lic street through a cemetery does not pre vent one who has laid out a cemetery from dedicating a strip along the edge of it which he still owns for a public alley, it not abridg ing the rights of parties to whom lots had been sold ; Du Bois Cemetery Co. v. Griffin, 165 Pa. 81, 30 Atl. 840.
A cemetery association has the right to limit all interments to the family of the lot owner and their relatives; Farelly v. Ceme tery Ass'n, 44 La. Ann. 28, 10 South. 386.
The property of cemetery associations is usually exempt from taxation ; Woodlawn Cemetery v. Inhabitants of Everett, 118 Mass. 354 ; People v. Cemetery Co., 86 IlL 336, 29 Am. Rep. 32; People v. Pratt, 129 N. Y. 68, 29 N. E. 7 ; and this exemption has been held to include immunity from claims for municipal improvements; Olive Ceme tery Co. v. City of Philadelphia, 37 Leg. Int.
(Pa.) 264. See 1 Washb. R. P. 9; Washb. Easem. 515; Cooley, Tax. 203 ; but it is held that it would not be relieved from paying an assessment for street improvements ; Lima v. Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 809; Alexander v. City Council, 5 Gil] (Md.) 396, 46 Am. Dec. 630 ; Boston Seamen's Friend Society v. Boston, 116 Mass. 181, 17 Am. Rep. 153 ; President, etc., of City of Paterson v. Society, 24 N. J. L. 385; People v. Cemetery Co., 86 111. 336, 29 Am. Rep. 32 ; Sheehan v. Hospital, 50 Mo. 155, 11 Am. Rep. 412.
A lot owner may maintain an action of trespass against one who wrongfully tres passes upon it ; Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409 ; Gowen v. Bessey, 94 Me. 114, 46 Atl. 792 ; it has been held that he may even sue the owner of the fee for such wrongful act; Hoff v. Olson, 101 ins. na, 76 N. W. 1121, 70 Am. St. Rep. 903 ; Besse mer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 South.' 565, 56 Am. Sc. Rep. 26. He may enjoin the cemetery association from preventing a member of his family from be ing buried in the family lot; Wright v. Cem etery Corp., 112 Ga. 884, 38 S. E. 94, 52 L. R. A. 521; or from removing the ashes of the dead ; Beatty v. Kurtz, 2 Pet. (U. S.) 566, 7 L. Ed. 521; or may obtain an order, to compel the association to keep the grounds in good order and maintain the whole as a cemetery ; Clark v. Cemetery Co., 69 N. J. Eq. 636, 61 Atl. 261.
An injunction may issue against the lot owner and the cemetery association to pre vent the burial of a dog ; Hertle v. Riddell, 127 Ky. 623, 106 S. W. 282, 15 L. R. A. (N. S.) 796, 128 Am. St Rep. 364.
A purchaser of a lot must look to the char ter and by-laws of the corporation, they be ing part of his contract of purchase. When the by-laws provide that "this cemetery is set apart for the burial of the white race," a negro may not be buried therein ; Hertle v. Riddell, 127 Ky. 623, 106 S. W. 282, 15 L. R. A. (N. S.) 796, 128 Am. St. Rep. 364 ; Peo ple v. Cemetery Co., 258 I11. 36, 101 N. E. 219. One who purchased a lot in a distinc tively Roman Catholic cemetery takes it with the tacit understanding that he will not be allowed to use it for the burial of one not a member of that church ; People v. Trustees of St. Patrick's Cathedral, 21 Hun (N. Y.) 184 ; Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903. But, where a lot was sold to a col ored man for burial purposes, the corpora tion was not allowed afterwards to change its by-laws so as to exclude him and his fam ily from the right of burial therein ; Mt. Moriah Cemetery Ass'n v. Com., 81 Pa. 235, 22 Am. Rep. 743.
Where a testator devised to trustees a lot of ground for burial of the dead of his fam ily, without any fund for its care, and the lot fell into disuse, the Orphans' Court may decree its sale and apply the proceeds in part to buying a lot in another cemetery, remov ing the dead, marking the graves or caring for the lot in the future and may divide the remainder among the heirs of the testator, but with no part for an elaborate monument to the testator ; Young's Estate, 224 Pa. 570, 73 At]. 941. The residue is distributable as real estate; Young's Estate, 20 Pa. D. R. 686.
See DEAD BODY; CHARITABLE Uses (as to a legacy to keep a lot in order).