PARK AND CEMETERY. 
386 
ground that it is a nuisance, the evi- 
dence must be clear and convincing, 
and establish the nuisance beyond ques- 
tion, and if the injury is doubtful, or 
contingent, equity will not interfere. 
Evidence examined, and held to sup- 
port a finding that the use of certain 
land for a cemetery constituted a nui- 
sance, warranting equity to enjoin the 
same. 
It will not be presumed that one pur- 
chasing land near an existing cemetery 
knew that the cemetery was a nuisance 
in fact, so as to prevent him from main- 
taining a suit to abate the same. — 
Payne v. Town of Wayland, 109 N. W. 
203, la., 1906. 
Cemeteries and Public Health 
The general power conferred by New 
York laws 1895, p. 481, c. 723, Sec. 7, 
on religious corporations, to take and 
hold real property for cemetery pur- 
poses, is subject to the exercise of the 
police power, including the powers of 
town boards of health. 
The Public Health Law, Laws 1893, 
p. 1502, c. 661, Sec. 21, providing that 
a local board of health shall make or- 
ders and regulations concerning matters 
in its judgment detrimental to public 
health, will not support an order of 
such a board that the use of certain 
lands for a cemetery would be detri- 
mental to public health and was there- 
fore prohibited unless such prohibition 
was necessary for preservation of the 
public health. 
Evidence in a suit to restrain the use 
of land in a town for a cemetery, held 
not to authorize a finding that such use 
is, or within a long time will become, 
dangerous to public health, so as to 
warrant an order of the town board of 
health prohibiting the use. — Morton v. 
St. Patrick’s Roman Catholic Church 
Society of Salamanca, 105 N. Y. S. 
1100, N. Y. Sup., 1906. 
When is Cemetery Established ? 
Certain persons obtained an option 
for the purchase of a tract of land of 
90 acres. Three acres were to be pur- 
chased separately and the remainder by 
a later date stated. The three acres 
were purchased and paid for and de- 
voted to cemetery purposes, the bodies 
from an existing cemetery being moved 
and reburied thereon. After this the 
borough passed an ordinance prohibit- 
ing the establishment of any new cem- 
etery therein, or “the enlargement of 
the existing cemeteries or burying 
grounds within the borough, by adding 
thereto or using for the purposes of in- 
terment ground not now owned by the 
owners of such cemeteries or burying 
grounds.” Prior to this the purchasers 
of the three acres had organized a cem- 
etery association to which such land 
was afterward transferred, and which 
still later completed the purchase of the 
remaining 87 acres largely on credit 
and by payment in its stock. The 
greater part of the stock was issued to 
the promoters and the association be- 
ing unable to sell its treasury stock was 
without funds. The 87 acres was not 
subdivided into lots nor prepared for 
cemetery purposes, nor were any burials 
made therein, and at the end of three 
or four years the land was sold in fore- 
closure proceedings to an individual 
purchaser. Held,, that such land was 
not an established cemetery at the time 
of the ordinance, within the meaning 
of such ordinance, and that the pur- 
chaser was not entitled thereunder to 
use it for cemetery purposes. — Carpen- 
ter V. Borough of Yeadon, 151 F. 879, 
U. S. C. C., Pa., 1907. 
Prohibiting Burials 
If a cemetery has never been and 
will not become a nuisance, and is not 
dangerous to life nor detrimental to the 
public health, it is not within the con- 
stitutional powers of a municipality to 
prohibit its use. 
An ordinance which ^arbitrarily pro- 
hibits the burial of bodies within an en- 
tire county, embracing large tracts of 
land unoccupied and remote from hu- 
man haoitation, where the public health 
and safety could not possibly be endan- 
gered, is unreasonable and void. — Hume 
V. Laurel Hill Cemetery, 142 F. 552, U. 
S. C. C., Cal., 1905. 
Where, in an action to enjoin the de- 
fendant from using certain land for the 
interment of dead bodies, one of the vi- 
tal issues is whether such land is a part 
of an established cemetery, and if it is 
determined that it is not, a resolution 
passed by the council of the city in 
which such grounds are situated, to the 
effect that such disputed ground is a 
part of the cemetery and not, therefore, 
taxable, will not affect the question as 
litigated and determined, and will af- 
ford no sufficient basis for a modifica- 
tion or vacation of an order for a per- 
petual injunction restraining the defend- 
ants from the use of such ground for 
burial purposes. — Lowe v. Prospect Hill 
Cemetery Ass’n, 106 N. W. 429, Neb., 
1905. 
Taxation 
Under Laws 1879, p. 397, c. .'SfO, pro- 
viding that no land actually used for 
cemetery purposes shall be sold for any 
tax or assessment, nor shall any tax or 
assessment be levied, collected or im- 
posed so long as it shall continue to be 
used for cemetery purposes ; no asses- 
ment for an improvement can be levied, 
though the improvement is authorized 
by a special act. Laws 1900, p. 1178, 
c. 497. — In re White Plains Presbyter- 
ian Church, 98 N. Y. S. 63, N. Y. Sup., 
1906. 
Widow's Right to Disinter Husband 
Denied 
Has a widow who has been denied 
the privilege of burying her dead hus- 
band the legal right, afterward, to dis- 
inter the body from the place where it 
was interred in a proper manner by the 
next of kin, for the purpose of reburial 
in a place more of her liking? This is 
the rather unusual question that was 
involved in a suit which originated in 
Jasper County, Mo., and upon which 
the Kansas City Court of Appeals hand- 
ed down a decision on June 28th. The 
court says : 
“We must hold that the widow had 
she been present, would have had the 
right, enforceable in a court of equity, 
to control the burial of her husband and 
to select the place of his interment, re- 
gardless of the wishes of his parents, 
at whose house he died. But she was 
away in a foreign country, was igno- 
rant of his death, and, therefore, was’ 
unable to assert her right, or, what was 
more important, to perform her duty. 
It is immaterial whether or not her 
disability was caused by the harsh 
neglect of her father-in-law. Whatever 
the cause, she was not there, and the 
right of a dead man to an orderly and 
decent sepulcher would not brook de- 
lay. That right was satisfied fully by 
the father, on whom this duty in- 
volved, and we perceive no good reason 
for permitting her to remove the body 
from its resting place.” 
Taxing Cemetery Greenhouses 
R. Calvert, of Oak Grove Cemetery, 
La Crosse, Wis., writes that they are 
having trouble about taxation, especially 
as regards their greenhouse, and would 
like to hear from other cemeteries that 
have green houses as to whether they 
pay a tax, and if so, how much. The 
experience of cemeteries in Wisconsin 
will be especially valualde. 
Rights in Churchyard Cemeteries 
An English authority says concerning 
a perpetual riglit of burial in a church- 
yard, that the church authorities may 
grant an exclusive right of burial in 
any part of the parisli churchyard, but 
such right is not usually a matter of pur- 
chase, and will not be granted without 
regard to the rights of the other parish- 
ioners. 
The usual form of grant is “so long as 
they conlinuc parislu'oncrs.” The “grave 
space” is never .absolute property of tlic 
grantee .and does not gi\'e biin a right 
which he c.an as.>ign to .anotlicr in Ins 
lifi'tiine or Ix’que.atb by will. 
