PARK AND CEMETERY. 
160 
CEMETERY LAW AND LEGAL DECISIONS 
Damages for Removal of Body. 
In an action of ejectment at Keokuk, 
la., for the recovery of a cemetery lot 
and for damages against persons who 
removed certain dead bodies from the 
graves in which they rested and re- 
buried them in another lot, defendants 
were not entitled to urge as a defense 
to the action that the bodies of the de- 
ceased, having been interred, should not 
be disturbed. The following summary 
•of the case is from the judge’s decision; 
The city of Keokuk acquired a tract 
of land, and platted it for cemetery pur- 
poses. It provided by ordinance for the 
sale and conveyance of the lots for 
places of burial, “subject to such condi- 
tions and regulations and at such prices 
as the city council shall prescribe by 
ordinance or otherwise,” and enacted 
that : “Every lot shall be used by the 
proprietor only for the purposes afore- 
said, shall be indivisible, and shall not 
be conveyed by the owner out of his 
family after an interment has been 
made thereon, unless to the city; or un- 
less the bodies have been previously re- 
moved therefrom, and shall be forever 
•exempt from taxes by the city.” Also, 
that “proprietors shall not allow inter- 
ment to be made in their lots for re- 
muneration, nor shall any disinterment 
be made without written permission by 
the mayor.” Sophia Whaley died in 
July, 1885, and her husband, Joshua 
Whaley, with other members of the 
family, selected lot 82, in block N, in 
the cemetery, and procured the convey- 
ance of said lot to said Joshua and 
his son, Mike Whaley, on the 28th of 
that month. The conveyance recited 
that “The city of Keokuk hereby sells 
and conveys to [grantees’ names] the 
lot described, and recited that it was 
^‘to be used only as a place of burial, 
and under and subject to the laws and 
•ordinances of the said city of Keokuk, 
and to be indivisible, and not to be 
■conveyed by the grantee out of his fam- 
ily after an interment has been made 
therein, unless to the said city, and this 
■conveyance shall be forfeited upon fail- 
ure to comply with, or the violation of, 
the provisions and laws and ordinances 
■of the city in relation to the cemetery.” 
Sophia Whaley was buried in said lot, 
and during the following year Joshua 
Whaley died, and was interred at the 
side of his wife. Joshua Whaley left 
surviving him three children, Mike 
Whaley, Sarah Coulson, and the plain- 
tiff, Amanda Anderson. Prior to 1898 
the defendants had acquired the lot ad- 
joining the one mentioned, and Sue 
Acheson negotiated with Mike Whaley 
for the purchase of that in which his 
parents were buried. The agreed con- 
sideration was $18, the price of another 
lot, the cost of improving said lot and 
transferring the bodies of his parents, 
$25, and $30 for the lot in controversy. 
These amounts were paid to the clerk 
of the city council of Keokuk, $25 being 
given to the sexton for the removal of 
the bodies, and $30 being paid to Mike 
Whaley. Permits were secured from the 
cemetery committee of the city council 
to remove the bodies ; the cemetery be- 
ing under the control of such committee 
by virtue of an ordinance. The lot was 
conveyed by Mike Whaley to Sue Ache- 
son by virtue of a permit “from the 
city to transfer” the same to her. Mrs. 
Acheson consulted plaintiff with respect 
to the purchase of the lot. She declined 
to consider the removal of the bodies 
of her parents, and did not ascertain 
until some time afterwards that the lot 
had been transferred to Mrs. Acheson 
and the bodies removed. In Febru- 
ary, 1903, this action was instituted, 
praying that defendants be ejected from 
the lot, and for damages for replacing 
the bodies of the deceased, together 
with the headstone which had been 
erected to the memory of Sophia Wha- 
ley. After the evidence had been intro- 
duced, the district court directed a ver- 
dict in plaintiff’s favor, with instruc- 
tions to allow the reasonable costs of 
restoring the bodies and the monument 
to the lot from which they had been 
taken. 
On an appeal this decision was af- 
firmed. 
Negligence of Superintendent. 
In the case of Feeley et al. v. An- 
drews, in Supreme Judicial Court of 
Massachusetts, Middlesex, April 2, 1906, 
the plaintiffs to maintain an action for 
negligence of the superintendent of a 
cemetery in disturbing the body of their 
mother in the course of preparing a 
grave for the body of their father, 
which they had employed him to do, 
must show such interest in the land as 
would authorize their maintaining tres- 
pass for an unlawful entry of it, which 
is not the case where it is shown that 
the cemetery is owned and managed by 
an archbishop, in the charge of a super- 
intendent," and that, though the grave 
has been used for 40 years by plaintiffs’ 
family for burial purposes, their right 
is evidenced only by a receipt, “For one 
family grave * * * G. 91 R. 12 
East;” it not being shown whether 
what was sold, was an easement to use 
a specific lot which would authorize the 
action, or a right to the use of a grave, 
which is a mere license, and insufficient 
to support an action of trespass. 
Protection of Cemetery Land by In- 
junction. 
In McCann et al. v. Trustees of Mt. 
Gilead Cemetery et al. (No. 20,775), 
Supreme Court of Indiana, May 29, 
1906, it was held that enjoining the 
construction of a railroad on any 
ground held, used, or occupied as a cem- 
etery, or held for cemetery purposes, 
protects not only that part of the ceme- 
tery where there are graves, but in- 
cludes all reasonable additions, even 
though they are not occupied by graves. 
On an appeal from the decision of 
the Circuit Court of Indiana, the deci- 
sion authorizes a suit to enjoin the 
construction of a railroad by those hold- 
ing land for cemetery purposes, irre- 
spective of whether they hold the ab- 
solute title or hold it in trust. 
This action was brought by appellees . 
under the act of 1899 (Acts 1899, p. 
15), being section 4708d, 4708e, 4708f, 
Burns’ Ann. St. 1901, to enjoin the Indi- 
anapolis Southern Railway and its co- 
appellants from constructing a railroad 
on certain real estate alleged to be “held, 
used, and occupied as a cemetery and 
for cemetery purposes.” A temporary 
injunction was granted by the judge in 
vacation. Afterwards appellants filed a 
motion to dissolve the same, which was 
overruled, from which action of the 
court this appeal was taken. 
It appears from the affidavits read in 
evidence that there has been in existence 
for more than 40 years a cemetery 
known as Mt. Gilead Cemetery, and that 
“236 persons had been buried” therein ; 
that tombstones had been erected and 
walks made and the cemetery used dur- 
ing said 40 years as a neighborhood 
burying ground; that the same lies im- 
mediately west of Mt. Gilead Church; 
that on March 11, 1902, William L. Ad- 
ams, William Galyan, and George 
Welch, claiming to act as trustees of 
said Mt. Gilead Cemetery by virtue of 
being elected as such by the members 
of said church and the relatives of 
those buried in said cemetery, as such 
trustees purchased of Jasper Meyers 
one acre of land lying immediately east 
of and adjoining said Mt. Gilead Cem- 
etery, being the land in controversy, 
over which appellants are about to and 
will construct said railroad if said tem- 
porary injunction is dissolved, and on 
the same day took a warranty deed 
therefor; that by mutual mistake of 
said parties the descriptive part of said 
