80 
P A R K AND C EM ETER 
scriber to Park and Ceaikterv. “Can the 
farmer tile an injunction against the ceme- 
tery corporation, or can he prevent the 
outlet being constructed on his premises?’’ 
— M. H., la. 
If any substantial damage is done or 
threatened to the property in the proposed 
tiling, the farmer is net apt to have much 
difficulty in establishing a good cause of 
action for injunction and damages. 
It is the law that an owner of land must 
hear all the disadvantages resulting to him 
from the natural flow of surface water 
across his land, but he has a clear right 
to freedom from injury or annoyance on 
account of the diversion of waters from 
their natural course by an adjoining owner. 
This is true whether the diverted water 
has become impregnated by unwholesome 
substances or not, but a peculiarly clear 
case of right to injunction or damages 
would, in my opinion, be made out by 
showing that a cemetery company or asso- 
ciation has so tiled its land, or threatens 
to do so, as to cast underdrainage on 
neighboring land. 
There appears to be no statute in Iowa 
specifically covering the case, nor does the 
Supreme Court of the state seem to have 
passed on the question, but the decision 
of the Illinois Supreme Court very recently 
handed down in the case of Sutton vs, 
l-'indlay Cemetery Association, 110 North- 
eastern Reporter, 315, shows what I regard 
as well settled law applicable in any of 
the states, so far as concerns the peculiar 
dangers to health resulting from casting 
cemetery underdrainings on adjacent lands. 
Directing issuance of an injunction 
against underdraining of cemetery lands 
into a branch or ravine, the court held that 
an owner of land adjoining a cemetery has 
no right to complain of its maintenance 
merely Ijecause it is offensive to his es- 
thetic sense, but that where underdrainage 
from it pollutes a stream from which his 
stock derives water, he is entitled to en- 
join such drainage. 
For the same reasons, an owner of land 
wculd have good ground for cause of com- 
plaint against any discharge of water into 
an open ditch running through his land 
where any definite form of injury would 
result to him. 
It was found in the Illinois case on the 
testimony of health experts that water per- 
colating through graves before reaching tiles 
would carry poisonous or disease germs, 
and this was held to afford sufficient ground 
for legal relief against the proposed drain- 
age. But the court specially decided that 
where it is shown that surface waters may 
Ije drained into a stream at a point touch- 
ing cemetery property, without any form 
of injury to dowmstream owners, there is 
no right of action, because the owner of 
cemetery lands, like the owmer of any other 
land, is entitled to drain it into adjacent 
rivers, creeks, etc., where the rights of 
lower landowners are not thereliy injuri- 
ously affected. 
But I do not mean to say that a ceme- 
tery may not be tiled where it can be done 
without ■'any form of injury to an adjoin- 
ing landowner. Aly opinion is limited to 
the points that no trespass may be com- 
mitted upon neighboring land b\' construct- 
ing an outlet thereon, or by flooding such 
land by discharging w'ater in such manner 
that it will flow across the land wdien it 
would not do so if left to follow its nat- 
ural course, and that wdien there is any 
peculiar damage done or threatened to a 
landowner liy the discharge upon his land 
of water polluted by percolation througli 
graves the law affords him redress. 
And, as already noted, regardless of any 
question of such pollution, the right of 
every landowner is such that he will be 
protected against injury to his property 
through flow of water diverted from its 
natural course to his land. 
If the proposed drainage cannot be ac- 
complished without bringing .injury to the 
adjacent farm land, the tiling should not 
be done except upon such terms as may 
be agreed upon with him. 
Thoroughfares Through Ceme- 
teries 
Editor Legal Department: A golf club 
just organized here is opening up their 
grounds of 35 acres just beyond the ceme- 
tery. There are two approaches from 
town to it, neither of which is nearly as 
desiralile as it would be through the ceme- 
tery. I apprehend this club wdll ask the 
privilege of passing through the cemetery, 
as the avenue through the cemetery is 
much nearer to the golf links and by far 
the most beautiful route. The members of 
this clul.) are my personal friends and the 
very best citizens, so I will be embarrassed 
to refuse, especially as they will be lilieral 
in helping to keep up this long avenue and 
their presence in the cemetery would be de- 
sirable except for the fast driving. Then 
it would he impracticable to keep less de- 
sirable persons from passing through. I 
should I e pleased to have your views on 
this siil)ject, for pressure may be brought 
to bear on me which will be hard to re- 
sist. — G. E., Ky. 
It seems, cn a reading of the Kentucky 
statutes, that the question whether the ave- 
nue may be used for the purpose men- 
tioned depends wholly upon the consent of 
the governing officers of the cemetery com- 
pany. 
The laws of most, if not all, the states 
provide that public roads shall not be con- 
demned through l)urial grounds, and Ken- 
tucky has a law (Ky. Stat. 1909, sec. 5433), 
which reads : 
"No road shall be ordered to be opened 
or altered through any burying grounds 
* * * without the consent of the owner.’’ 
Now, plainly, no one could compel the 
cemetery company in question to permit 
use of the avenue as a means of access 
to and from the golf links, but there is 
nothing to prevent the cemetery company 
from granting the permission on such con- 
ditions as may be imposed by the govern- 
ing board of the company. 
Forms of Cemetery Deeds 
A Kentucky cemetery superintendent 
sends the following form of deed and asks 
our ■ advice concerning any desirable 
changes that might be made in it : 
“General Warranty Deed to Family 
Lot in the Cemetery. 
"This Deed, made this day of ■, 
19 — , liy and between The Ceme- 
tery Company of , County, 
Kentucky, a corporation duly incorporated 
under the laws of Kentucky, party of the 
first part, and , of County, 
State of , part — of the second part; 
'A'Vitnesseth : That the party of the 
first part, in consideration of 
dollars to it paid by the part — of the sec- 
ond part, the receipt of which is hereby 
acknowledged, does hereby sell, grant and 
convey unto the part — of the second part, 
heirs and assigns forever, with cove- 
nant of ‘General Warranty,’ the follow- 
ing described family burial lot in the 
Cemetery, formerly the Odd F'ellows’ Cem- 
etery, in and adjoining the town of , 
and in County, Kentucky, to-wit : 
Lot No. , located on the 
side of avenue, in the part of 
said cemetery as delineated on the Register 
Map of said cemeterv. The size of said 
lot is feet liy feet, more or less, 
and is a part of said cemetery, which, with 
its anrex, was acquired by said company 
from the Grand Lodge of Kentucky, Inde- 
pendent Order of Odd Fellows, January 14, 
1904, and Kate Drane, as of record in deed 
bocks No. 48, page 194, and No. 50, page 
495. in the clerk’s office of the County 
Court, 
"But it is expressly understood and 
agreed that said lot is never to be used 
for any purpose inconsistent with the ob- 
ject for which said cemetery has been dedi- 
cated, and that said lot shall be subject to 
the laws and regulations of said company. 
"In Testimony Whereof, The said party 
of the first part has caused its corporate 
name and seal to be signed and affi.xed 
hereto, and the president and secretary 
thereof have subscribed their names.’’ 
Then follows blanks for signatures and 
acknowledgment. 
* * > 1 ' 
Since the particular ' form of deed has 
apparently been in use for several years 
and uniformity should be adhered to as 
closely as possible, I do not see that anv 
substantial change in the language of the 
deed is desirable. 
I would, b.owever, suggest that it would 
be a good plan to add after the words, 
‘‘subject to the laws and regulations of 
said company,’’ the w'ords, “heretofore or 
hereafter established.’’ Strictly speaking, 
a purchaser of a lot takes subject to all 
reasonable regulations adopted after his 
purchase, as well as those already in force 
