72 
"He (Mayor Brown) also was influenced, 
lie (Mayor Brown) said, by the fact that 
a large part of the cemetery, unused, es- 
capes taxation that falls entirely on abut- 
ting property owners.” 
In another article in the same paper, ap- 
pearing the day after the approval of the 
ordinance by the Mayor, it is said : 
"It (the cemetery) 'also is an impediment 
to improvements in that vicinity because 
the ground, including that not used for 
burials, escapes taxation and cannot be 
used for streets. 
"The enactment of the ordinance will 
clear the way to widen Main street and to 
open Grand avenue or Walnut street 
through the unused ground. This part of 
the cemetery property will become valuable 
when put on the market, and will have to 
bear its share of the cost of improvements 
in that neighborhood.” 
On the day this action was brought, the 
same paper, in giving an account of it, 
said : 
“The city ordinance prohibiting future 
burials in a district including Union Cem- 
etery was passed by the Council July 14. 
Its purpose was to make an unoccupied 
part of the cemetery subject to special 
taxes and public improvements.” 
And on the evening of March 24, 1911, 
the day on which the trial of this cause be- 
■gan, and while the trial was in progress, 
the same paper said : 
“All semblance of reason for the rule 
fails in such a case as that of the Union 
■Cemetery Association of Kansas City. The 
powers to tax and exercise the right of 
■eminent domain are powers of sovereignty. 
The powers to avoid taxation and to block 
a right of way for a public use are equally 
sovereign. Sovereignty belongs of right 
only to the public as a trustee for the pub- 
lic. That land held by a burial association, 
existing for profit accruing by several ave- 
nues of business activity, should be ex- 
empt from general taxation and from as- 
sessments for special betterments is an un- 
reasonable and inequitable thing. That the 
association should be able to block essen- 
tial public improvements and continue its 
financial energies in derogation of public 
welfare, and do these things in the name 
of a consecrated privilege, would be a yet 
more unjust anomaly.” 
The plaintiffs introduced much evidence 
as to the physical and sanitary condition of 
the cemetery. 
Charles Johnson, the superintendent of 
the cemetery, and, in fact, witnesses for 
both the plaintiffs and defendants, testi- 
fied that from five to twelve men were em- 
ployed therein; that the grass was cut sev- 
eral times a year in the summer months by 
■scythes, it being impossible, on account of 
the plat of the cemetery, to use machinery 
for that purpose; that the monuments were 
straightened up, sunken graves were filled 
and trees and shrubbery were trimmed sev- 
eral times annually. 
PARK AND CEMETERY. 
That there were some pools of water lo- 
cated in the north end of the cemetery, 
caused by excavations of rock which had 
been made for the purpose of filling with 
earth, so the ground could be used for bur- 
ial purposes ; that said pools only existed 
for short periods during the rainy sea- 
son ; that blue grass grew there, and that 
those depressions were being filled with 
earth and would be completely filled within 
three months. 
That for a considerable distance north 
of the cemetery the land is low and broken 
and the water during the rainy season 
sometimes stands there, which is the result 
of drainage, principally from causes other 
than the cemetery land. 
Johnson, the superintendent, who was a 
witness for the defendant, testified that he 
had never seen the cemetery in an un- 
sanitary condition. 
Several witnesses whose families are 
buried in that cemetery testified as to the 
condition of the same. 
Among them was ex-Mayor J. J. Daven- 
port, who testified that the conditions in 
the cemetery were good, but on land out- 
side of the cemetery the conditions were 
bad ; that there were no pools of water 
standing in the cemetery ; that this cem- 
etery was not as well kept as some he had 
seen in other cities, naming them from an 
artistic point of view, but from a sanitary 
standpoint nothing was wrong with it, and 
that there were no hygienic reasons for 
closing the cemetery. 
Dr. Stephen H. Ragan, a practicing phy- 
sician in the city, who lives not far from 
the cemetery; fifteen or twenty members 
of whose family are buried there, includ- 
ing his grandfather, his father and his 
wife, who has been a visitor there weekly, 
and sometimes two or three times a week 
for many years, says that aside from the 
roads the cemetery is in a fairly good con- 
dition ; the ground is hilly and the rains 
wash the gravel out of the driveways. He 
has never seen anything there which was 
in the least unsanitary or dangerous or 
deleterious to health. 
Mr. J. Lee Porter, whose ancestors for 
three generations are buried in the ceme- 
tery, testified in substantially the same way. 
Mr. O. R. Welch, an expert civil en- 
gineer of many years residence in the city, 
described the topography of the property 
from actual examination and survey, and 
testified that : 
The south part of the cemetery ground 
is on the highest level ; from there it slopes 
through its entire area to the north and 
east; there are two small draws in the 
ground running in a general northerly di- 
rection and they unite near the northern end 
of the cemetery ; that carry off the drain- 
age, and eventually the drainage reaches 
O. K. Creek, which lies about one-half to 
three-fourths of a mile to the north, runs 
west and finally empties into the Kaw 
River. O. K. Creek, although a small nat- 
ural stream, is virtually nothing more nor 
less than a sewer, used by the city as such, 
for part of its distance it is open, for a 
part enclosed. It receives the drainage not 
only from the cemetery, but from the lands 
between it and the cemetery, which slope 
on the one side to the east and on the other 
towards the west, both slopes terminating 
in a natural north and south depression, 
with its slope in a general northerly direc- 
tion toward O. K. Creek. The ground 
north of the cemetery to O. K. Creek is 
rough, ragged and broken. Much stone 
has been excavated from it. Because of 
the jagged and unfavorable character of 
the territory north of the cemetery there 
are many more houses, in proportion, to 
the south than to the north of the ground. 
The plaintiff has a 20-inch sewer in the 
cemetery which carries off the surface wa- 
ter, and the water from a spring in the 
grounds in the direction of the natural 
course of drainage. There is no under- 
ground system of drainage, neither is there 
any in any other cemetery in the city. 
There is no sewer in St. Peter and St. 
Paul’s Cemetery. 
The drainage of the cemetery is taken 
care of in very much the same manner as 
that of other cemeteries in the city. The 
drainage from Mount St. Mary’s Cemetery 
and also from Elmwood Cemetery flows 
into a creek known as Gooseneck Creek. 
Gooseneck Creek, like O. K. Creek, serves 
the purpose of a sewer. It is enclosed part 
of the way. It runs east instead of west 
and empties its waters into the Blue River 
near Sheffield, a thickly populated neigh- 
borhood within the city limits. 
In the north part of the cemetery rock 
has been excavated to the extent of nearly 
five acres. The last excavating was about 
three years before the trial This was done 
because the rock came to the surface, or 
there was so little soil that it was not re- 
garded, in its existing condition, as adapted 
for burials. The excavating was done for 
the purpose of fitting it for burial ground, 
and the company, since the completion of 
the excavation, has been filling it with clean 
dirt, so as to render it suitable for graves, 
and at the time of the trial it was expected 
that the filling would be finished in about 
three months. The company sold the rock 
so excavated. The pools referred to by 
some of the witnesses were in depressions 
caused by these excavations and when the 
fulling is completed will cease to exist. 
The potter's field is in the northeast part 
of the cemetery; there are about two acres 
in it. Persons are buried very close there. 
In the year 1910 there were buried in the 
cemetery 1,363 persons, of whom 406 were 
paupers and were interred in the potter’s 
field. The cemetery company receives no 
pay for the ground occupied by these 
graves. No paupers are buried either at 
Elmwood or at Mount St. Mary’s. 
(To be continued.) 
