174 
PARK AND CEMETERY. 
seems to me that the Supreme Court of 
the state has recognized the fact that it is 
discretionary with a lot owner whether he 
will devote his private funds to the im- 
provement or care of the lot. For in 
the case of Bourland vs. Springdale Ceme- 
tery Association, 158 Illinois Reports, 458, 
that court recognized that the matter of 
the care of lots rests broadly within the 
judgment of the owners thereof. 
That the obligation of a lot owner to 
contribute toward the upkeep of his lot is 
a matter of personal volition with him is 
further indicated by the section of the 
Illinois statutes which provides that ceme- 
tery trustees shall receive such property as 
may be given or bequeathed to them in 
trust for the preservation of lots. 
And that there is a growing policy of 
the law to impose upon cemeteries the 
duty of caring for lots is indicated by that 
other Illinois statute which reads as fol- 
lows : 
“The board of directors of such ceme- 
tery society or cemetery association, or 
the trustees of any public graveyard, may 
set apart such portion as they see fit of 
the moneys received from the sale of the 
lots, in such cemetery or graveyard, which 
sums shall be kept separate from all other 
assets as an especial trust fund, and they 
shall keep the same invested in safe inter- 
est or income paying securities, for the 
purpose of keeping said cemetery or grave- 
yard, and the lots therein, permanently in 
good order and repair, and the interest 
or income derived from such trust fund 
shall be applied only to that purpose, and 
shall not be diverted from such use.” 
In view of the fact that this law does 
not limit the use of the trust fund to the 
keeping in good order of lots bought at 
the time of or after the establishment of 
the fund, but broadly declares that such 
fund shall be used for the purpose of 
keeping the cemetery “and the lots there- 
in” in good order, it strikes me that there 
would be very plausible ground for a claim 
that a trust fund created under this statute 
must be applied to the care of lots sold be- 
fore creation of the fund as well as of those 
sold afterwards. I do not mean by this 
that a distinct part of money received from 
a given lot purchaser might not be set 
apart to provide a fund to care for that 
particular lot, for authority for doing this 
is to be found in the first mentioned stat- 
ute. But it does seem to me that the 
general fund provided for by the other 
statute must be held for old lots as well as 
for new ones. 
In any event, I am of the opinion that 
no personal liability or assessment can be 
enforced against a lot owner for the ex- 
pense of caring for a lot, excepting as 
that obligation is assumed at the time of 
the purchase of the lot, either by reason 
of any existing rule of the association or 
by express agreement. 
* * * 
Coming to the last part of our correspond- 
ent’s query, in which he asks whether the 
association could -bar undertakers from 
lining the graves, and could compel them 
to us.e the association's lowering device, I 
see no reason why the purchaser of a lot 
might not validly agree, at the time of 
purchasing his lot, that the association 
should furnish the equipment mentioned 
and be entitled to a fee for the use of it. 
But I do not believe that such require- 
ments would be binding on persons hold- 
ing lots before the adoption of such re- 
quirements — not even when the lot cer- 
tificate or deed provides that the holder 
shall abide by subsequently adopted rules. 
I take this view because I do not believe 
that the courts would hold such a regula- 
tion to be reasonable, as against existing 
lot holders. A lot owner acquires the 
right to make interments free from any 
unreasonable interference. He is entitled 
to choose his own undertaker and to au- 
thorize that undertaker to use his own 
appliances in making the interment. 
Unless I am wrong in my view of the 
question, the query resolves itself into the 
point whether a cemetery can monopolize 
the business of furnishing lining, lower- 
ing devices, etc., as a matter of profit, 
without any relation to the welfare of the 
cemetery at large. The courts hold that 
a cemetery can monopolize the control of 
lot improvements, for the legitimate pur- 
pose of securing uniformity of appearance 
of the grounds as a whole. But I fail to 
see where any similar reasoning calls for 
invasion of the undertaker’s province, as 
representative of the lot owner, to use his 
own burial equipment. I think the case is 
governed by the following language of the 
Illinois Court of Appeals, used in the case 
of Richey vs. City of Canton, 46 Illinois 
Appellate Court Reports, 183, in which it 
was held that where there was no restric- 
tion on the right of a lot owner to employ 
her own grave-digger when she bought 
her lot that right could not be taken away 
from her by^ an ordinance adopted by de- 
fendant city after it acquired ownership of 
the burial grounds : 
“The power of the city to regulate by- 
ordinance the use and manner of the 
burial lots by- persons purchasing from the 
city after the adoption of such ordinance 
does not apply to her lot, except to the 
extent that the provisions of the ordinance 
are directed to the protection of t':e healthy 
comfort, safety and welfare of the public. 
The lot is her property, with all the title 
and rights of fee simple ownership of 
cemetery lots located within the limits of 
a city. One of these rights is the privi- 
lege of interring therein the bodies of 
her dead by her own hand, if she likes, or 
by the hand of such sympathetic neigh- 
bors or friends as may volunteer their 
service, or by whom she may employ for 
that purpose. The city may by ordinance 
establish such regulations concerning the 
manner of digging the grave, its dept, etc., 
and the interment, as are reasonable in 
their character and necessary for the pro- 
tection of the public health and welfare, 
and she or those who make the grave for 
her must conform to such regulations. 
Her right, however, to make a grave in 
her own lot and inter therein the body of 
her deceased daughter can not, by ordi- 
nance, be made dependent upon the per- 
mission of the city sexton, nor can he 
claim by virtue of the ordinance exclusive 
right to make the grave for her, even for 
reasonable compensation. The appellant 
was acting at the request of Mrs. Rush, 
and as she might lawfully do by another 
that which she might lawfully do herself, 
he can not be held amenable to an ordi- 
nance that was not effective as to her.” 
As law editor of Park and Cemetery, 
the writer desires to uphold to the full 
limit all legal rights of cemetery associa- 
tions, and in the instance of every query 
submitted for his judgment looks carefully 
for legal authority to sustain a favorable 
opinion, but feels that it is no less his duty 
to present an unfavorable side of a ques- 
tion, when called for by statutory and 
judicial law, than to present the law on a 
point favoring associations. 
Public Character of Cemeteries 
By exercising statutory authority to 
condemn additional lands for cemetery 
purposes, a cemetery company assumes an 
obligation to afford burial rights at rea- 
sonable charges, according to a late deci- 
sion of the New Hampshire Supreme 
Court, announced in the case of Browne 
vs. Park Cemetery, 101 Atlantic Reporter, 
34. 
« 
Proceedings v.'ere instituted under statu- 
tory authority for the condemnation of 
land for burial purposes to be used by the 
Park Cemetery, a corporation organized 
under the laws of New Hampshire. 
Browne, part of whose property was taken 
under the proceedings, objected on the 
ground that the condemnation would 
amount to a taking of private property for 
private use, in violation of constitutional 
guaranties. Dismissing the objection, the 
Supreme Court said : 
“As the plaintiff’s land can under the 
statute be taken only for public use, there 
is no constitutional objection to the stat- 
ute. Whatever title the association may 
have to land previously acquired by treaty, 
all land it may acquire under this statute 
will be affected by the public use. 
“ ‘If the right in the old ground is not 
public in every sense of the term, it will 
not affect the public right in regard to 
that part of the ground which is added to 
it by this enlargement. The part added 
will be public, subject to such regulations 
and restrictions as the by-laws of the asso- 
ciation may make; and that is enough to 
answer the material part of this claim, viz : 
its being subject to the objection of tak- 
ing private property for private use only.’ 
Edwards vs. Stonington Cemetery Asso- 
ciation, 20 Conn. 466, 479. 
“Having invoked the power of eminent 
domain for the acquisition of rights in 
the lands of others, the defendant can be 
