308 
of the sacredness attaching to soil in which 
human remains are to be interred, the 
courts are very reluctant to divest title 
from the holder of a cemetery lot after 
the cemetery association has voluntarily 
given him title on^ credit. 
Cemetery Exempt from Railway Con- 
demnation. 
“The tribute of a tear is all I crave, 
And the possession of a peaceful grave.” 
— Pope, “Homer's Odyssey.” 
The sanctity accorded by the law to cem- 
eteries is shown in some states by the 
enactment of laws which make burial 
grounds an e.xception to the general rule 
that property may be condemned for the 
purpose of constructing or extending a 
railroad. For instance, a statute in force 
in Indiana reads : 
“No person or corporation shall locate 
or construct a railroad on any real estate 
held, used or occupied as a cemetery.” 
This statute has been interpreted by the 
Indiana Supreme Court as not only ex- 
empting from condemnation that part of a 
cemetery actually occupied by graves, but 
all reasonable additions, even though pres- 
ently unoccupied. (McCann vs. Trustees 
of Mt. Gilead Cemetery, 77 Northeastern 
Reporter, 1090.) The court said: 
"It is evident that, since the taking effect 
of said act, the construction of a railroad 
on any real estate held, used, or occupied 
as a cemetery or for cemetery purposes, is 
unlawful and can be enjoined under section 
2 of said act. . . . 'Ibis protects not 
only that part of the cemetery where there 
are graves but the part intended for burials 
in the future, and includes all reasonable 
additions to an existing cemetery, even 
though a part thereof is not occupied by 
graves, but is held for cemetery purposes,” 
Cemetery Property not Liable for Debts 
of Owner, 
Where a tract of land has been platted 
for cemetery purposes, it cannot be reached 
by creditors of the owner, according to a 
decision of the Nebraska Supreme Court 
handed down in the case of First National 
Bank vs. Hazel, 89 Northwestern Reporter, 
378. 
Defendant platted land in a Nebraska 
city for burial purposes under proper legal 
authority, the city to receive a stated per- 
centage of the proceeds of lot sales, which 
percentage was to be used exclusively for 
the purposes of preserving, caring for, and 
beautifying the grounds. The tract em- 
braced 166 lots and about 100 had been sold 
when the plaintiff tried to hold the remain- 
ing 66 liable for defendant’s debts. The 
suit was prosecuted on the theory that be- 
cause defendant was selling the lots and 
retaining for his own benefit the net pro- 
ceeds of sale arising above the percentage 
paid to the city, his interest in the lots was 
subject to seizure. But the trial court de- 
cided that the property was exempt, and, 
on appeal, the Supreme Court affirmed the 
judgment, saying: 
PARK AND CEMETERY. 
“It is not the policy of the law nor the 
intention of the legislature exempting such 
real estate from execution that the spirit 
of discord shall be permitted to invade the 
silent precincts of the dead, and there hold 
high carnival in an unseemly contest as to 
which of contesting litigants shall profit by 
the sale , of the necessary parts of mother 
earth to enfold in its peaceful embrace the 
last that is mortal of man. The lots sought 
to be reached by the present action have 
regularl}- been platted, appropriated, set 
apart and dedicated for the purposes of the 
burial of the dead. They come within the 
provisions of exemption in the statute 
quoted. Nor are we able to say that, be- 
cause the owner receives a pecuniary con- 
sideration for the burial lots which are 
disposed of by him in such burial ground, 
such fact renders them, if unsold, subject 
to execution and forced sale, as contended 
for by the appellant. The statute does not 
so distinguish. . . . The section quoted 
is complete in itself, is unambiguous in its 
terms, and exempts from forced sale prop- 
erty appropriated and set apart for burial 
purposes without exceptions or qualifica- 
tions. The property in question comes 
within its terms, and must, therefore, be 
held to be exempt from seizure, either by 
direct legal process or by equitable pro- 
ceedings attempting to subject it to judicial 
sale for satisfaction of a debt against the 
owner of the legal title to such lots. About 
whether the proceeds of such sales may be 
reached by a creditor, and the method 
thereof, we need not concern ourselves, as 
that question does not enter into our con- 
sideration of the appeal.’’ 
Exemption of Cemeteries from Street 
Assessments. 
In the case of Woodmere Cemetery As- 
sociation vs. City of Detroit, 159 North- 
western Reporter, 383, the important ques- 
tion was raised whether a cemetery asso- 
ciation might be held liable on a municipal 
assessment levied for the improvement of a 
street abutting upon the cemetery. Eight 
judges of the Michigan Supreme Court 
heard and passed upon the case, and all 
agreed that the cemetery land could not be 
sold to satisfy such an assessment. But 
there was an equal division of the court 
on the point whether other assets of the as- 
sociation could be reached to satisfy a judg- 
ment against it on account of the improve- 
ment ; four judges holding one way and 
four the other. The circuit court in Detroit 
had decided that (he association could not 
be held liable. This decision becomes the 
law of the case since a majority of the 
judges of the Supreme Court did not agree 
that it was wrong. But the equal division 
of opinion deprives the decision of author- 
ity as a precedent, and leaves it an unde- 
cided point in Michigan whether or not 
the funds of a cemetery association may be 
reached to contribute toward the cost of a 
paving improvement. 
The opinion of Judge Ostrander, con- 
curred in by three other judges of the 
Supreme Court, is as follows : 
“Whether the defendant city had a lien 
upon complainant’s (the cemetery associa- 
tion’s) property for the particular tax, en- 
forceable by a sale of the property, is a 
question which is answered by reasoning 
which necessarily determines whether the 
property was exempt from the tax. It is 
impossible to consider whether the property 
of complainant is exempt from the partic- 
ular tax or assessment, apart from the 
remedy provided for the collection of the 
tax. If the property is exempt from the 
lien, it is exempt from the tax. In my 
opinion, the property here in question is 
exempt from the particular tax. It is ex- 
empt from general taxes by virtue of 1 
Comp. Laws, § 3830; it is exempt from the 
particular tax by virtue of a settled state 
policy evidenced by the provisions in the 
charter of complainant and in other stat- 
utes. It was said by this court in Avery 
vs. Forest Lawn Cemetery Co., 127 Mich., 
125, 129, 86 N. W., 538, 540: 
“ Tt is the settled policy of this state, in 
common with the universal sentiment of 
mankind, to preserve and maintain the 
burial places of the dead. The legislature 
has, by express enactment, prohibited the 
sale, except for burial purposes, or mort- 
gaging of land set apart for cemetery pur- 
poses. It has also in express terms pro- 
vided for the exemption from levy and 
sale on execution, or upon any other final 
process of a court, of all cemeteries, etc., 
while in use as repositories of the dead. 
This was within the power of the legis- 
lature to do, and so careful has the legis- 
lature been to preserve such properties for 
burial purposes that it has also in express 
terms taken it out of the power of the 
court of chancery to decree satisfaction of 
any judgment out of such exempt property.’ 
“With respect to the particular tax the 
policy of the state is not less clear. Turn- 
ing to the act, the charter of complainant, 
it is found that the premises by their dedi- 
cation are irrevocably set apart for use as 
a burial place for the dead. The powers of 
the complainant are limited, and it can sell 
none of the land except for burial purposes 
unless ‘the same shall not be occupied or 
required for burial purposes, or for the 
uses of such cemetery.’ A laying out of 
the grounds, a plan, is required. It cannot 
alter the plan or design for laying out the 
land in a way to interfere with rights of 
burial already granted. It can execute no 
mortgage, lien, or incumbrance upon the 
land used for burial purposes, nor grant 
burial rights in any mortgaged lands. It 
it a duty imposed upon complainant to pre- 
serve good order in the grounds, to see 
that they are well kept and in good condi- 
tion, and after paying for the land to re- 
serve at least two-thirds of all receipts de- 
rived from sale of burial rights, after pay- 
ment of current expenses, for interest, 
improvements, and embellishing, until a 
