THE MODERN CEMETERY. 
71 
the protection of the public. If it lies in consecra- 
ted ground the ecclesiastical law, it is said, will in- 
terpose for its protection; but, whether in ground 
consecrated or unconsecrated, indignities offered to 
human remains in improperly and indecently disin- 
terring them are the ground of an indictment. 
Since then the current of judicial opinion has been 
gradually changing, so that the courts, if applied 
to in time, would now doubtlessly interfere to pre- 
vent the removal of bodies under many circumstan- 
ces where they could afford no relief after the re- 
moval. Thus in the Stephen Girard case it was 
said that where a person was buried in a common 
burying ground, where the title did not pass, the 
law did not furnish a remedy in reference to a re- 
moval; but a chancellor of a court of equity would 
intervene to prevent the desecration of the grave. 
This much seems to be clearly settled, accord- 
ing to a high authority, that when a body has once 
been buried, no one has the right to remove it with- 
out the consent of the owner of the grave, or leave 
of the proper ecclesiastical, municipal or judicial 
authority. A purchaser of land upon which is a 
burial ground has no right to remove the bodies 
against the wishes of those interested. Every one 
of the interments, it is said, is to be regarded as an 
assertion by the one party, and an admission by 
the other, of the existence of the privelege of bur- 
ial, with all that implies, as belonging to those who 
exercised it, the legal effect of which concession 
the purchaser cannot repudiate. In a North Caro- 
lina case which turned largely upon practically this 
same principle, it was suggested, on the argument, 
that the owner of the land on which there was a 
burying ground had the legal right to remove the 
monuments, however indecent, improper, and cen- 
surable it might be in a moral point of view, to do 
so. This view, the supreme court of that state pro- 
nounces wholly untenable. Granting that he was 
the owner of the land, it says that it was decent, 
orderly and proper to bury the dead, they were 
buried, and he, or those under whom he claimed 
title to the land must be presumed to have assent- 
ed to and sanctioned the use of it for burial purpo- 
ses, and having done so, he had not the right to 
remove the bodies interred there, or the memorial 
stones erected by the hand of affection and respect, 
and much less had he the right to desecrate the 
place, by felling the trees, ploughing the ground, 
and throwing down and scattering the grave stones. 
The law does not tolerate, but on the contrary, for- 
bids such acts, as criminal offences of serious mo- 
ment. Causes might arise that would require 
and justify the removal of dead bodies from one 
place of interment to another, but such removal 
should be made, with the sanction of kindred. 
in a proper way, or by legislative sanction. 
Returning now to the original question, it 
would seem plain that, where anything like an un- 
conditional license to bury, either express or im- 
plied, has been granted, no matter if it is not 
accompanied by any transfer of title, the owner of 
the land has no right to remove the body so buried 
without at least the consent of the next of kin, or 
the proper legislative or judicial authority. Where 
the burial is made under a conditional license or 
permission, as that the lot must be paid for or the 
body will be removed to another location, it might 
well be that the removal, if done carefully, and 
not objectionable on any sanitary grounds, would 
be regarded by the courts as justified. And, as 
before stated, the courts would be more apt to pre- 
vent, on application, a removal of this kind, than 
to afterwards punish it. The Indiana case of Ham- 
ilton vs. The City of New Albany is a strong one 
in some respects, and a good illustration of this last 
statement to close with. Proof was made on the 
trial, that the city had, by mistake, resold a lot in 
which years before the first purchaser thereof had 
buried the body of his deceased child, and that 
when about to inter a corpse in the lot at the re- 
quest of the second purchaser, the sexton discover- 
ed the box containing the remains of the child, 
which he carefully removed and placed in a place 
set apart for single graves. The first purchaser of 
the lot had removed from the city and had no 
knowledge of this until he sent to have the body of 
his child removed to another city. There were no 
special damages shown or expenses incurred The 
first purchaser instituted this action to recover dam- 
ages. The finding of the jury was for him, with 
one cent damages, and this the supreme court says 
that it does not feel at liberty to disturb, but af- 
firms, with costs. 
* * 
* 
The foregoing article has been prepared for 
The Modern Cemetery by a member of the Chi- 
cago bar and is therefore a legal view of the ques- 
tion. 
It will interest our enquirer to know what action 
has been taken under similar circumstances in one 
of the adjoining states. Mr. D. Densmore, Pres. 
Oakwoods Cemetery, Red Wing, Minn., says: The 
Board of Trustees, after taking charge of the city’s 
cemetery, gave six months’ notice to all delinquent 
lot holders, which was extended a further six 
months to pay up, or in default the bodies would be 
removed to the Potter’s field and the lots placed on 
sale at a higher valuation. This was carried out. 
The ordinance contained no special clause as to 
right to make such removals, but the ground was 
taken that parties burying their dead in lots which 
