554 
PARK AND CEMETERY. 
petual dedication of the land for Inirial 
purposes and the fact that fee simple deeds 
were issued to lot holders, require "a rec- 
ognition by this court of the right of lot 
owners and others directly interested in 
burial lots, graves, vaults, monuments and 
other burial fixtures, in the cemetery of 
the defendant, to be undisturbed in their 
possession and enjoj'inent of the same 
siibiect to the Vules and legulations nec 
essary for keeping the graveyard or Iniry- 
tng ground in general good condition and 
repair,' until the cemetery shall lawfully 
and by proper authority be discontinued 
and the land applied to other purposes." 
“Land set apart for the decent interment 
of the remains of friends and relatives, the 
erection of tablets, and monuments to 
commemorate their lives and virtues, and 
the beautifying of the grounds consecrated 
to them by the tears of their survivors is 
in the truest sense dedicated to a pious and 
charitalile use. Though there lie no strict 
property in a human corpse or the ashes 
representing it. when those hai'ing the con- 
trol and management of a cemetery execute 
the pious and charitable use liy allowing, 
whether under a deed or other formal con- 
tract or only a permit, written or oral, the 
acquisition of a burial lot or space, and 
the interment of such remains therein and 
the incurring of expense in or about the 
interment, or the construction of vaults or 
erection of memorials or the suitable orna- 
mentation of the grounds, the friends or 
relatiies of the departed, being or repre- 
senting those who obtained such deed, con- 
tract or permit, are vested with a right of 
which they cannot arbitrarily lie deprived, 
to possess, care for and maintain the liurial 
lot or space until that right is lawfully and 
by proper authority terminated. When one 
applies for a burial lot or space and the 
right of interment it is to lie assumed, in 
the absence of a stipulation or clear under- 
standing to the contrary, that both jiarties 
contemplate and intend that he should pos- 
sess a permanent right of occupation of the 
spot allotted for the last resting place of 
the dead. Even in the alisence of a deed 
or other written muniment of title such 
right should be enforced in equity as a 
right growing out of an executed license." 
Judge Bradford's opinion is a veritable 
treatise on the phases of cemetery law dis- 
cussed by him, referring to numerous court 
decisions bearing on the subject. I give be- 
low a summary of some of those decisions : 
Lay vs. Carter, 151 Xew York Supple- 
ment, 1081, in which a New York court de- 
cided that where a family used part of a lot 
of land for burial purposes for more than 
seventy-five years with no record title, the 
record owners, who knew of such user and 
Iw' silence consented to it, would be deemed 
to have dedicated for a cemetery so much 
of the lot as was actually so used. 
Pitcairn vs. Homewood Cemetery Co., 
229 Pa. 18, 77 Atl. 1105, in which the Penn- 
sylvania Supreme Court decided that de- 
fendant was properly restrained from in- 
terfering with the erection of a mausoleum 
by a lot owner, who had an absolute deed 
to his lot, subject to existing rules of the 
cemeter}’. 
In re Brick Presbyterian Church, 3 Edw. 
Ch. 155, in which a New York court de- 
clared that where a religious corporation 
had acquired land in fee for the purposes 
of a church and a graveyard, it could val- 
idh’ deed a portion of the land for use as a 
burial vault, and that the same could not be 
sold against the objection of the grantee. 
.-\nother court in New York decided in 
Windt vs. German Reformed Church, 4 
Sandf. Ch. 471, that as against persons who 
had no title to the lots in which their rela- 
ti\-es were ljuried, the graves might be re- 
moved on proceedings had in compliance 
with an existing law. This decision is dis- 
tinguished from the Brick Presbyterian 
Church case holding in that there was rec- 
ord title in favor of the lot holders in the 
latter case. 
In concluding this review of the Dela- 
ware decision, we (piote the following lan- 
guage : 
“The right of property of those acquiring 
burial lots under conveyance in fee is rec- 
ognized in many other cases, among which 
are New York Bay Cemetery Co. vs. Buck- 
master, 49 N. J. Eq. 439, 24 Atl. 2, where 
the conveyance of the l)urial lot was ‘sub- 
ject, however, to the conditions and limita- 
tions and with the pri\ileges specified in 
the rules and regulations now made, or that 
may hereafter l)e made, and adopted by tlie 
managers of the said cemetery for the go^’- 
ernment of the lot owners and visitors to 
the same.' Rosehill Cemetery Co. r s. Hop- 
kinson, 114 111. 209, 29 N, E. 685; Clark vs. 
Rahway Cemetery Co., 69 N. J. Eq. 636, 61 
.\tl. 261, where the conveyance to the lot 
owner was 'sulrject to such rules and regu- 
lations as the trustees thereof have or may 
adopt respecting the said cemetery and its 
management.’ 
court of equity at the instance of 
proper parties has power to. restrain the 
threatened wrongful destruction or removal 
of tomlis, vaults, coffins, human remains, 
or monuments in or from a cemetery, or 
wrongful injury thereto, or to the burial 
premises. * * 
“The se\eral owners and holders of lots 
in a cemetery ha\-e a common interest in 
its decent and proper maintenance as a 
whole. * * ^ For, while each owner or 
holder is directly and immediately inter- 
ested in the lot controlled by him, he is 
at the same time interested that its sur- 
roundings shall be those appropriate to a 
well-ordered resting place for the ashes of 
the dead, and not converted into a rvaste 
])lace or dumping ground for refuse mat- 
ter or the accumulation of debris, or into 
a site for the erection of buildings, for- 
eign to the pious or charitable use to which 
the land has been dedicated and devoted. 
There is an implied contract to this effect 
between those owning or controlling the 
cemetery and those acquiring the owner- 
ship or possession of burial lots therein. 
And, so long as the cemetery continues 
as such, it is immaterial that interments 
may have ceased by reason of overcrowd- 
ing or considerations touching the public 
health or other cause. * * 
“There is abundant authority to the ef- 
fect, not only that a wrongful threatened 
destruction or dismantling of a cemetery 
may be the subject of injunctive relief at 
the hands of any one or more of those 
directly and immediately interested there- 
in, but also that persons having relatives 
and friends buried in a cemetery may 
maintain a suit to enjoin the defacing or 
desecration of the graves, monuments, etc., 
and to preserve the premises as a ceme- 
tery.” 
Right to Interment in Lot 
The purchaser and owner of a lot in 
West Laurel Hill Cemetery died intestate, 
leaving surviving her eight children. Some 
years later, one of the daughters died, leav- 
ing two minor children, one 19 years old 
and one 11 years old. 
The day after the death of the husband 
of this deceased daughter, application for 
his burial in the same grave with his wife 
was made and an order, signed by four 
of the children and the two grandchildren 
of the above, was left with the cemetery 
company. The next day, an attorney, rep- 
resenting another son, called to protest 
against the burial and, when he was in- 
formed that the cemetery company would 
not prevent this interment, he went into 
court to get out an injunction to prevent 
the burial. When the case was argued, 
the judge took the ground that the burial 
devolved on the question of whether the 
deceased was a member of the family or 
not. He finally left the room to con- 
sider the case and returned with another 
judge. This second judge was highly in- 
dignant that an effort had been made to 
delay the funeral, partly because he con- 
sidered such a delay prejudicial to the 
health of the community and also because 
he considered the delay of any funeral 
improper for such reasons, stating that the 
proper procedure demanded the burial of 
the body and then the starting of a suit 
in equity for this removal at some later 
date. The judge asked what would have 
been done with the body if the deceased 
had died without any means : upon whom 
the duty of burying the body would have 
devolved under the circumstances and 
whether the minor children of the decedent 
would not have been required to furnish 
the ljurial place and whether the}’ would 
not naturally make the burial in the lot 
of which they were part owners. The 
judge then refused to grant the injunction 
and the funeral took place as advertised. 
The case was heard before Judges Pat- 
terson and Shoemaker, in Court of Com- 
mon Pleas No. 1 at Philadelphia, on an 
■ application for a preliminary injunction 
