PARK AND CEMETERY 
195 
Uniform Cemetery Laws 
Address by Walter Puckett, President, Elmzvood Cemetery Corporation, 
Birmingham, Ala., at Barre Convention of Cemetery Superintendents 
My principal reason for selecting this 
subject is the total lack in the majority of 
states of any statutory laws whatever re- 
garding commercial cemeteries. The av- 
erage business man is always anxious to 
respect the legal and moral rights of 
those with whom he has dealings, and my 
observation and personal experience indi- 
cate that the average person engaged in 
the operation of a commercial cemetery is 
particularly careful with reference to re- 
specting the rights of those owning lots 
or having relatives buried in the cemetery. 
In addition to the motives which inspire 
the desire in the ordinary man to respect 
the rights of his customers, there are two 
other motives which the operator of a 
commercial cemetery must constantly keep 
in mind, either of which is amply sufficient 
to cause a man of proper prudence to be 
■ever on the alert in his efforts to avoid 
disregarding any of the rights of his cus- 
tomers. The first is found in the fact that 
■one of the best assets of a commercial 
cemetery is a belief in the minds of the 
public that those in charge will not only 
■conduct it in a fair and proper manner 
while those purchasing lots therein are 
living and able to assert their rights and 
protect themselves, but will continue to 
conduct the same long after the pros- 
pective purchasers have purchased their lot 
and have been called to permanently oc- 
cupy the same. This alone is a sufficient 
reason to cause any operator of a com- 
mercial cemetery to exercise particular cau- 
tion in and about the rights of others. 
There is. however, another reason which 
Is, in a large measure, mercenary. This 
reason is found in the fact that juries 
usually have a very delicate feeling re- 
garding the bodies of the dead, and are 
ever ready to award the relatives of those 
whose bodies are buried in cemeteries 
heavy damage where such bodies are dis- 
turbed, unless the one disturbing the same 
can prove himself entirely innocent. It 
can readily be seen, therefore, that it is 
very desirable that the operators of a 
commercial cemetery know their rights. 
I have been informed by my attorneys that 
the courts of last resort have rendered 
comparatively few decisions regarding 
such rights. In order to emphasize this in- 
formation, one of my attorneys referred 
me to practically the only case in the state 
of Alabama in which such rights have been 
considered to any extent whatever, and 
suggested that I read two paragraphs 
therein. These paragraphs so aptly illus- 
trate this attorney’s statement that I have 
concluded to quote them. They are as 
follows : 
“Exactly what the rights of one are to 
the burial place of his dead — in the ab- 
sence of a fee to the soil, or his right to 
the possession thereof — as respects the 
maintenance of a civil action for its dis- 
turbance, is one of delicate and, as yet, 
not very satisfactory solution. People 
have so much respect for the final resting- 
place of the dead, and there is so little to 
tempt one to disturb their repose, cases 
are of rare occurrence where such disturb- 
ances have become the subject of litiga- 
tion and the adjudication of the courts. 
Those that have arisen have generally, as 
in this case, grown out of the removal 
of the dead from one place to another, for 
purposes, as claimed, of health, conven- 
ience, or the better care, preservation and 
ornamentation of these burial places. 
“Cooley, in his work on Torts, says: ‘In 
respect to the burial of the dead, if any- 
where, shall we find in the common law 
a recognition of the legal rights of the 
family as an aggregate of persons. Even 
in that case, however, the recognition is 
very faint and uncertain. An unlawful 
interference with the buried dead of a 
family might probably be restrained by 
injunction on their joint application, and 
the owner of the lot in which the body 
was deposited might maintain trespass 
quare clausum fregit for its distinterment, 
and recover substantial damages, in award- 
ing which the injury to the feelings would 
be taken into consideration’ ; and he adds, 
‘that the common law did not recognize the 
bodies of the dead as property, belonging 
to the surviving relations, ‘though it did 
lecognize a property in the shroud or other 
apparel of the dead as belonging to the 
person having charge of the funeral.’ ” 
It will readily occur to all present the 
need of statutes describing with certainty 
when and under what circumstances bod- 
ies can be distinterred and the particular 
person to whom notice of such distinter- 
ment shall be given, the nature of such 
notice, the rights of persons burying their 
dead in lots for which they have not paid, 
the rights of the operators of cemeteries 
to make reasonable rules from time to time 
and enforce the same against all lot own- 
ers and the duties of such operators with 
reference to prohibiting persons not au- 
thorized to bury a body on certain lots 
from making interments thereon. The 
laws of Alabama provide that where a 
mortgage is foreclosed the maker of the 
mortgage can redeem the land on certain 
terms at any time within two years there- 
after. It is doubtful, so I am advised, 
whether or not a man owning a lot in a 
cemetery can execute a valid mortgage 
thereon. Nevertheless, one of our lot own- 
ers did execute a mortgage which was 
subsequently foreclosed. Before the ex- 
piration of the two years, the purchaser 
of the lot at the foreclosure sale demanded 
that the body of his daughter be interred 
therein. You can readily realize that we 
were placed in a very embarrassing posi- 
tion, and even at this time we do not 
know where we stand with reference to 
that particular transaction. We have, of 
course, assumed the position that the ques- 
tion ‘bf'*the rights of the various claimants 
of the lot is a matter to be decided be- 
tween them, but it is manifest that in 
many such cases the operator of a ceme- 
tery would have great difficulty in pre- 
venting it from being brought into liti- 
gation regulating the rights of claimants 
in such a lot. A statute clearly indicat- 
ing whether or not a debt could be se- 
cured by a mortgage on a lot in a ceme- 
tery and prescribing the rights of parties 
in such a lot pending the expiration of 
the time allowed for redemption would, 
of course, remove all such uncertainties. 
No argument is needed to indicate that 
it will be far better for the laws regulat- 
ing cemeteries to be the same in each 
state. The American Bar Association has 
made considerable progress in an effort to 
have uniform laws passed in the various 
states on several subjects. As is well 
known, the law regarding negotiable in- 
struments has been enacted in more than 
forty-five states. Uniform laws regarding 
partnerships, divorces and on various other 
subjects have been proposed by this asso- 
ciation and adopted by many of the states. 
I am informed that through strong and 
representative committees much has been 
done by this association along this line, 
and that it not only welcomes, but really 
seeks, the co-operation of business associ- 
ations of all kinds in its efforts to extend 
such laws. It is, of course, the ultimate 
hope of this association that all general 
subjects will be regulated by identically 
the same statutes in every state. This 
would not only aid the business man hav- 
ing transactions in various states, but 
would be a great and untold benefit to the 
lawyers. Furthermore, our everyday 
knowledge of legislatures teaches us the 
fact that a law sponsored by such an asso- 
ciation would aid greatly in securing the 
passage by the various legislatures. 
I am of the opinion that no harm would 
be done and that great good would prob- 
ably be accomplished by the appointment 
of a committee charged with the duty of 
framing laws governing commercial ceme- 
teries and with the duty of procuring the 
aid of the American Bar Association in 
having them enacted. I believe that such 
a committee would be able to accomplish 
a great deal in a comparatively short time. 
Think for a moment what it would mean 
if every member present here today could 
tell without consulting his attorney ex- 
actly what are the rights of the owner of 
a commercial cemetery and of its patrons 
tinder practically any set of circumstances 
and regardless of where such cemetery is 
located, so long as it is in this country. 
