PARK AND CEMETERY. 
11 
SOME PROBLEMS OF CEMETERY LAW 
Liability for Disinterring Remains. 
Editor Park and Cemetery : “A’s father 
is buried in an Illinois cemetery; his sister- 
in-law, without his consent, removes body 
of his father, made another interment in 
the grave and put the bones of the father 
back with the newly interred body ; has 
she the right to do this without the consent 
of the son? Who would have the control 
of this lot under the Illinois law?” — J. C., 
111 . 
I am of the opinion, on the authority of 
the statute and decisions cited below that 
the son could maintain an action for dam- 
ages for disturbance of his father's re- 
mains. It would also seem that she tech- 
nically violated the Illinois state law which 
makes it a felony to disturb human re- 
mains without proper authority. Again, it 
is quite clear to me that had the son been 
apprised of his sister-in-law's intentions, 
he could have forestalled the disinterment 
by injunction proceedings. 
.•\ statute in force in Illinois (similar 
laws are in force in several other states) 
reads : "\\'hoever willfully, and without 
authority, digs up, disinters, removes or 
conveys away from the place of sepulture 
or interment thereof, or knowingly aids in 
such disinterment, removal or carrying 
awaj', shall be imprisoned in the peniten- 
tiary not less than one nor more than ten 
years.” 
It will be noted that this law makes it 
as much an offense to disinter, although 
reinterment is made in the same grave 
immediately, as it is an offense to steal 
and remove a body, although the law was 
doubtless enacted more with a view to the 
latter than the former offense. 
Since anything which constitutes a crime 
is always a good basis for a civil suit for 
damages suffered by the person wronged, 
it follows that violation of this law sub- 
jects the offender to liability to aggrieved 
heirs. 
.Again, if there happens to have been a 
health regulation in the particular locality 
requiring a permit for disinterment of 
bodies an^ such permit was not obtained 
in this case, the sister-in-law would be 
liable to that penalty. 
-My attention has been drawn to no Illi- 
nois law that specifies to whom burial lots 
shall descend on death of the owner, and 
therefore it would seem that the general 
rule applies in Illinois, that title to such 
lots rlescends the same as ordinary real 
estate to decedent's heirs. This particular 
pha.se I have more e.xhaustivcly covered in 
another article in Park and Ce.metery. 
P>ut apart from any question of owner- 
ship of a burial lot, the surviving relatives 
of a deceased person are entitled to legal 
relief against unauthorized disturbance of 
the remains. In fact, the Illinois Supreme 
Court has gone so far as to hold that mere 
friends may enjoin desecration of graves. 
(Davidson vs. Reed, 111 Illinois Reports, 
167.) In this case it appeared that land 
had been dedicated for burial purposes by 
an owner of a larger tract, and the suit 
was brought to enjoin a subsequent owner 
from interfering with the graves. In grant- 
ing an injunction in favor of two residents 
of the neighborhood who had friends in- 
terred in the cemetery, the Illinois court 
decided that suit will lie to enjoin an 
owner of land from defacing or meddling 
with graves on land dedicated to the pub- 
lic for burial purposes, whether the suit 
be brought by relatives or friends of de- 
ceased persons in the particular ground. 
The same principle w'as recognized by 
the Iowa Supreme Court in the case of 
Hassenclever vs. Romkey, 133 Iowa Re- 
ports, 473, a controversy over a boundary 
line between burial lots. The Court said : 
“As to the facts involved in this some- 
what unseemly quarrel, we shall not take 
the time to recite the evidence. It is to 
be noted that neither party has any title, 
in the usual sense of that word, to their 
respective burial lots. As members of the 
public they have the right of burial there, 
and that doubtless carries with it the right 
to prevent intrusion or trespass thereon.” 
.A case somewhat similar to that pre- 
sented by our correspondent was passed 
upon by the Georgia Court of Appeals 
(McDonald vs. Butler, 10 Georgia Appeals 
Reports, 847). There it was held that a 
city was not liable for disinterment in a 
municipal cemetery of a body which was 
reburied elsewhere and another person’s 
body substituted in the original grave, but 
that the persons who did it were individ- 
ually liable. The Court follows an earlier 
decision of the Supreme Court of the state 
to the effect that one who is the owner of 
the right of luirial in a cemetery lot. or 
whcv is rightfully in possession of the same, 
is entitled to recover damages from any 
one who wrongfully enters upon such lot 
and disinters the remains of persons buried 
therein. These are some of the points de- 
cided by the Court of Appeals: Disrespect 
to remains liy disinterment will be pre- 
sumed to have been intentional and will 
sustain an award of exemplary damages, 
as well as actual damages, in the al).sence 
of a showing of reasonable excuse for the 
acts complained of. Graves must be re- 
garded as sacred and be left uiiflisturbed 
except for good cause. 'I'he mere fact 
that a grave appears to have been aban- 
donefl by surviving relatives will not jus- 
tify its ruthless invasion. Neglect of a 
child, though never so gross, to care for 
the grave of his parent will not excuse one 
who wantonly or negligently disinters the 
body. “The law recognizes and holds sa- 
cred that respect which all natural persons 
are presumed to have for the memory of 
the dead : and when the feelings of a child 
have been wounded in the manner de- 
scribed in the petition, damages will be 
awarded. * * * Qf course, if there has 
been an honest mistake, and no malice and 
no gross negligence, and no such reckless 
disregard of the rights of the plaintiffs as 
would be equivalent to an intentional vio- 
lation of them, they would not be entitled 
to recover c.rcmplary or punitive damages.” 
What the Court said as to interring the 
body of a stranger may partly apply to the 
Illinois case presented by our correspond- 
ent : 
“Here the lot remains, but the body of a 
stranger to plaintiffs reposes there. No 
one with proper respect for the memory of 
a deceased loved one would care to lay his 
remains beside those of an alien in blood. 
The law will not require plaintiffs, in order 
to obtain the full benefit of their right of 
burial, to commit an act similar to that 
which the defendants are alleged to have 
performed. The plaintiffs bought and paid 
for the lot, and thpse who wrongfully de- 
prived them of their right to its full and 
complete enjoyment ought to pay whatever 
the right may have been worth at its fair 
market value.” 
A North Carolina statute makes it a 
felony to open a grave e.xcept on legal 
process, or by the consent of the surviving 
husband or wife, or next of kin, and of 
the person in control of the grave. Under 
this statute the Supreme Court of the state 
decided that no specific intent need be 
shown on the part of offenders, and that 
municipal cemetery authorities may he 
held personally under this law in ordering 
removal of bodies from graves not paid 
for. (State vs. McLean. 121 North Caro- 
lina Reports, 589.) The court declared: 
“The statute is absolutely clear in the 
language employed, and is directed against 
all who disturb the last resting place of 
the dead, except those who act under legal 
process, or who procure the permission to 
open the graves and remove the bodies, 
from the surviving husband or wife, or the 
next of kin of the deceased, and of the 
person having control of the grave.” 
The New Hampshire .Supreme Court has 
decided that even though a dead body can- 
not lie regarded as properly in the ordinary 
sense of the term “property,” it is treated 
in law as such, to the extent of entitling 
surviving relatives to legal protection from 
unnecessary disturbance and wanton inva- 
sion of the grave. In the same case the 
rule is expressly recognized that notwith- 
standing the fact that a surviving relative 
has no title to the lot. he may redress dese- 
eration of the grave. (Rage vs. .Symonds, 
63 New Hampshire Reports, 17.) 
.As has been said by the Minnesota .Su- 
preme Court, it would be a reproach upon 
