PARK AND CEMETERY. 
175 
Another experience full of interest is a 
visit to Wizard Island. One can climb its 
sides and descend into its little crater. 
Geologists find Crater i^ake of special 
interest because of the way nature made 
it. Many volcanoes have had their tops 
blown off. Mount Rainier was one of 
these. But no other in the United States 
has fallen in, like Mount Mazama. 
The evidence of this process is quite con- 
clusive. The lava found on the slopes that 
remain was not blown there from an ex- 
ploding summit, but ran, hot and fluid, 
from a crater many thousands of feet 
higher. The pitch of these outer slopes 
enables the scientist to tell with reason- 
able probability how high the volcano 
originally was. 
SOME PROBLEMS OF CEMETERY LAW 
Rules on Building Foundations. . 
Editor P-VRK and Cemetery : Until re- 
cently monument dealers have been at lib- 
erty to build foundations for monuments 
in the local cemetery and to set markers, 
corner posts, etc. Recently the trustees of 
the cemetery association passed rules that 
all foundations should be made by them 
and also the setting of markers and corner 
posts. The question is : Can the cemetery 
collect for foundations for monuments 
which were contracted for before the new 
rules were adopted? — F. K. B. 
It is a well settled principle of law that 
rights which have vested under a contract 
cannot be affected by a subsequently enact- 
ed law or by the acts of one of the parties 
to the contract. But this principle does 
not apply to the case presented. It has 
been settled by court decisions that it is 
within the powers of a cemetery associa- 
tion to control building of foundations, 
setting of markers, corner posts, etc., ex- 
cept as a lot owner may have, by express 
provision in his deed to the lot or other 
instrument, obtained the right to control 
such matters himself. So that if the asso- 
ciation you mention had not, by deeds to 
the lots or otherwise, parted with the right 
to regulate the construction of founda- 
tions, etc., the rule, if reasonable, is en- 
forceable. But if it appears that the rule 
was not adopted in good faith to secure 
uniformity in construction of foundations, 
etc., or for some other reasonable purpose, 
but was adopted solely as a means of profit 
to the association, and that the association 
is charging excessive amounts for building 
foundations and setting markers and cor- 
ner posts under the protection of its 
monopoly, then I am of the opinion that 
the lot owners are not bound by the rule 
and can have it adjudged to be void as un- 
reasonable. But since there is no contract 
relationship between a monument dealer 
and the association, so far as concerns the 
dealer’s contract with a lot owner, I do 
not believe that the dealer has a standing 
in law to complain of the rule adopted by 
the association. 
If the association had not parted with 
the right to require lot owners to permit 
the association to construct the founda- 
tions, etc., and the rule was, therefore, 
properly adopted, the dealer may claim re- 
lease from his contract with the lot owner, 
so far as relates to the construction of the 
foundation and the setting of markers, etc., 
on the ground that that matter is within the 
control of the association. But if the 
dealer chooses to go ahead with his con- 
tract, he is bound by the rule. 
It would have been fairer for the asso- 
ciation to have exempted from the rule 
cases where contracts had been made be- 
fore the rule went into force, provided 
that the foundations, etc., conform to speci- 
fications adopted by the association. But 
if the association had reserved power to 
build foundations, etc., in itself, I am of 
the opinion that the rule could validly re- 
late to all foundations thereafter con- 
structed, regardless of .whether lot owners 
had previously contracted with dealers. 
If such rule were adopted in good faith, 
but is intended to give the association an 
unfair monopoly under which excessive 
charges are imposed, the rule might be at- 
tacked by lot owners suing to enjoin the 
association from interfering with the con- 
struction of a foundation by a dealer em- 
ployed by a lot owner. 
Subscription to Mausoleum 
Compartments. 
A mausoleum company is not entitled to 
recover on a subscription for a compart- 
ment without showing tender of a valid 
certificate of ownership, according to the 
ruling of the Washington Supreme Court 
in the case of Mausoleum Sales Company 
vs. Morgan, 158 Pacific Reporter, 255. 
Plaintiff was denied the right to recover 
on such a subscription because it appeared 
that the only certificate of ownership ten- 
dered the defendant was executed by an- 
other company not then owner of the mau- 
soleum, and was not attested by the cor- 
porate seal. 
Another point decided against the plain- 
tiff in the case was that a contract to 
“deed” a compartment was not complied 
with by tendering a mere certificate of 
ownership. On this point the court said ; 
“The company earnestly contends that 
the certificate is equivalent to a deed ; that 
no greater right would pass to defendant 
under a deed than under a certificate. The 
weight of authority seems to sustain that 
contention. The rule is stated in Roanoke 
Cemetery Co. vs. Goodwin, 101 Va. 610, 
44 S. E. 771, as follows: ‘It is settled 
law that a formal deed is not essential to 
confer the exclusive right to the use of a 
lot in a cemetery on the purchaser for 
burial purposes; and, on the other hand, 
if the lot be conveyed by deed absolute in 
form, such purchaser only acquires the 
right or privilege of using the lot for the 
purpose for which it is dedicated.’ ” 
The Washington court, however, states 
that, under the contract for “deed” in this 
case, defendant was entitled to a deed ca- 
pable of being recorded. 
Employment of Superintendent. 
Under a contract for the employment by 
a cemetery association of a landscape en- 
gineer and superintendent, containing a 
clause requiring his services to be “satisfac- 
tory” to the association, he may be dis- 
charged on the association becoming dis- 
satisfied, unless it appears that the dis- 
charge is made in bad faith. This is the 
gist of a decision handed down by the Illi- 
nois Appellate Court in the case of Wei- 
denmann vs. Mount Hope Cemetery Asso- 
ciation, 194 Illinois Appellate Court Re- 
ports, 464. 
The contract in this case called for an 
annual salary of $3,500 for an agreed term, 
or “such portion of said term as the serv- 
ices of the said party of the second part 
may be satisfactory.” Another clause pro- 
vided that either party might forfeit the 
contract for a substantial breach of the 
agreement committed by the other. 
In a suit brought against the association 
for discharging the superintendent, the trial 
court held that there was a right to re- 
cover, but the judgment was reversed on 
appeal, the higher court holding that the 
association was the sole judge as to 
whether the services were satisfactory. 
Testamentary Provision for Cemetery. 
The will of a New Yorker provided that 
a public cemetery should be laid out on a 
certain farm in Westchester County for 
the purpose of providing free burials for 
persons dying in the locality, and also pro- 
vided for the maintenance of a small plot 
therein for interment of his relatives. Un- 
der this will, the .“Appellate Division of the 
New York Supreme Court has held that 
on failure of the first provision, on it be- 
ing found that testator had no valid title 
to the land in question because it was 
fraudulently obtained, the courts will nev- 
ertheless give effect to the second pro- 
vision for the establishment of a family 
lot, the will providing sufficient funds 
which actually belonged to testator for 
that purpose. (In re Lyon, 159 New York 
Supplement, 951.) 
