98 
THE MODERN CEMETERY. 
Individual Rights and State Removals. 
The reported cases are not harmonious upon the 
question as to the character of the title which a lot 
owner has to a burial plot in a cemetery controlled 
and governed by a corporation. The courts have 
differed as to whether it is a right of use analogous 
to that of a pew owner in a church, or whether it is 
an ownership in the soil. The general term of the 
Supreme Court of New York holds, in a recent de- 
cision on the subject, that the question of title can- 
not be determined solely by the terms of the deed 
given to the lot owner. Reference must be had to 
the act of the legislature creating the corporation 
from which title is derived, and to the limitations 
upon its power, and to the manifest intent of the 
parties to the instrument. Every owner of a ceme- 
tery lot must be deemed to have purchased and to 
hold it for the sole purpose of using it as a place of 
burial, and he is bound to know at his peril that it 
may become offensive by the residence of many 
people in its vicinity, and that its use must yield to 
laws for the suppression of nuisances. Every ceme- 
tery within or near large cities must give way to the 
advance of population. Interments ultimately must 
cease, and the remains of the dead that are capable 
of removal must be reinterred in new grounds. 
Every lot owner holds his title subject to that con- 
tingency, and no conditions or covenants contained 
in deeds appropriating the lands to particular uses 
can prevent the legislature declaring such use un- 
lawful, and compelling the removal of all bodies 
from the grounds. All individual rights of property 
whether they rest on absolute conveyances or mere 
license, are subject to laws of this character. The 
power of the legislature to prohibit interments in or 
to remove the dead from cemeteries which, in the 
advance of urban population, may be detrimental 
to the public health, or in danger of becoming so, 
is not at this day a debatable question. Assuming, 
therefore, as must be done, that the use of a ceme- 
tery as a burial place may be interdicted, and the 
bodies of the dead removed, it cannot, the court 
thinks, be seriously claimed that it was within the 
contemplation of parties to a deed for a burial plot 
that when that contingency should arise the indi- 
vidual owner should hold title to his lot for general 
uses, the same as he would hold other property. In- 
dividual ownership, under such circumstances, would 
only create confusion of title, and eventually leave 
a large tract of land without the care or supervision 
of a responsible owner. The lots would be small, 
and of no use for building purposes, inaccessible in 
many instances from the city streets, and where the 
original grantee had died, probably owned by many 
persons having widely separated residences, and in 
many instances unknown. A construction should 
not, therefore, be put upon deeds of this character 
that would produce such a result, unless the rules of 
law applicable to such instruments forbid any other 
conclusion. It is settled by a long line of authorities 
that a pew owner has no claim for compensation 
when the church is taken down from necessity aris- 
ing from the condition of the building or other im- 
perative exigency. It cannot be said in any sense 
that in such case his property is taken for a public 
use. Eor all of which reasons the court holds here 
not only that a deed to a cemetery lot from an in- 
corporated association, even though absolute in form, 
conveys no title to the soil which subsists after a 
removal by legislative requirement, but that the 
rights of burial which the lot owner loses, in the 
old ground will be fully restored to him in the new, 
so that, in legal contemplation, he suffers no dam- 
ages. Nor is another statute providing that a lot 
in which an interment has been made is forever 
thereafter inalienable, a limitation upon the power 
of the legislature to order a sale of the property by 
the association in such a case as this to defray so 
far as necessary, the expenses of the required re- 
movals. 
The South Bend, Ind., Sunday News says: 
When so prominent a churchman as Bishop Law- 
rence openly advocates cremation, as he recently did 
before a Boston audience, it is an indication that 
the question has passed beyond the speculative stage 
and is confronting us as a vital issue. The opposi- 
tion to the new method of disposing of the bodies of 
the dead has chiefly in this country come from those 
who believe in the literal bodily resurrection of the 
departed, and who have held that this was a part of 
the Christian belief. Bishop Lawrence boldly as- 
sailed this opinion and affirmed that cremation is 
not out of harmony with Christian principles, and 
that it should be regarded as a reverent and Chris- 
tian method of disposing of the remains of the de- 
parted. The existence of churchyards for the bur- 
ial of the dead within the limits of large cities is now 
considered as hostile to the living on sanitary 
grounds, and Bishop Lawrence has taken a forward 
step in this matter, in which he he will have a large 
number of supporters. 
* * * 
A better idea, because of the higher conception 
suggested, has been bequeathed by the late Prof. 
Swing, the lamented Chicago divine, in that by his 
last testament he desired that the casket containing 
his remains should not be opened for public obser- 
vation. It is due to the spirit of the departed who 
lived for good, that the public pay fitting and wor- 
thy tribute in the final ceremony of putting the 
earthly tabernacle away, but the taste of the times 
now loudly protests against the former practice. 
