A SUMMARY OF LEGAL MATTERS AFFECTING CEMETERIES. 
Paper read by y . £, Miller^ MattooUy ///., before the com^ention of Cemetery Sitperintendents, 
The importance of this subject needs no discussion. No 
superintendent who has had any experience has failed to find 
that out, and when you come to look over the field in which 
we are working, the different ways in which the cemeteries 
are organized, the difference in the state laws, and court de- 
cisions, and in many cases the entire absence of these laws 
and decisions, makes the subject only the more complicated. 
I suppose the conditions in Illinois are a fair sample of other 
states. Some are much better, others probably worse. In 
Illinois cemeteries that are operated under a charter direct 
from the Legislature have their powers and privileges pretty 
well defined, but we have a very large class of cemeteries 
owned by cities and villages, and operated under city ordi- 
nances. controlled more or less, by party politics, that are 
not so fortunate. I speak from experience on this line when 
I agree with Mr. Pirie of Milwaukee, Wis., when he says, 
“to avoid legal difficulties, first make your location and or- 
ganization permanent.” In this paper I want to be as brief 
as I can, considering the importance of the subject, and make 
my statements as clear and to the point as possible. 
There are a few general cases where the courts of most 
all the states have decided practically alike. 
1. That the cemetery lot belongs to the heirs of the de- 
ceased owner. 
2. That the wife has the first right to the body of her 
deceased husband, or the husband that of his wife. I refer 
you to the opinion by Attorney Frank W. Grinnell, of Bos- 
ton in Park and Cemetery of December, 1905, and Janu- 
ary, 1906. 
3. After a body has once been buried on a lot it can only 
be legally removed, by the consent of the lot owner and the 
legal representative of the body so interred, and I might 
also add the health authorities of the state. 
This question was thoroughly discussed at our Washington 
convention, and I need only refer you to our published re- 
ports. Now there is another class of questions which can- 
not be so easily settled. Most of our state laws say that 
cemetery associations shall have the power to make all reas- 
onable rules and regulations for the government of the ceme- 
tery. Some of the states may specify how far the associa- 
tion may go in this direction but the Illinois law does not. 
It simply says that all such rules and regulations must be 
subject to the rights of the lot owners. Now under this 
heading come a number of very important questions. First, 
the reconveyance of lots without the consent of the cemetery 
association. I do not know how it is in other states, but in 
Illinois, the lot owner who gets a deed to the ground can go 
before a notary public and sell all or part of it to any one he 
pleases, and there is not a cemetery in the state that wants 
to test its legality in the courts. 
Second. The assessment of the cemetery lot so much per 
year for annual care. Almost all cemeteries of any size have 
a rule requiring a payment from one to three dollars a year 
for annual care, but I have yet to learn of an Illinois ceme- 
tery trying to enforce it by law. And even in New York 
state as well a posted authority as Bellett Lawson, Jr., 
said in our last convention, that he did not believe any law 
would stand that assesses the lot owners against their will. 
That if these assessments were proven legal and collectible 
it would leave a permanent tax on a cemetery lot which is 
contrary to all we have drilled into us about not taxing the 
land in which our dead are buried. Again, the question of 
the right of the lot owner to improve or beautify the lot by 
the erection of monumental work, planting of trees, shrubs, 
flowers, etc. Now I do not mean what is the custom but 
what is the law, if any, on the subject? I do not know what 
it may be in other states, but in Illinois the rights of the lot 
owners can only be settled under the general law of the 
state and we have very few precedents. I know my brother 
Superintendents, Carter, Rudd, Tilton and others are pretty 
successful in enforcing these rules, but it is done by moral 
suasion and not by law. Now these are all important ques- 
tions and affect not only the beauty of the cemetery but its 
records and finances also, and should be settled in each state 
by statute. 
Then there is the question of trespass and damages for 
personal injuries. One interesting case has just been decided 
by the appellate court in Chicago, in which Mt. Greenwood 
Cemetery was made defendant for damages, by a lady who 
received severe injuries, by stepping in an open tile drain 
within the cemetery. The court decided the cemetery was 
not liable on the ground that the evidence showed that the 
open tile was not on any public walk or drive and that the 
plaintiff was trespassing. Another important legal question 
is the safeguards that should be thrown around our “Trust 
Funds.” We accept money for the perpetual care of lots, 
and in justice to the lot owmer these funds should he made as 
secure as possible. I presume each state has its own laws on 
the subject. 
(Continued on pa.ge 208.) 
