PARK AND CEMETERY. 
179 
RIGHT of CEMETERY to CONTROL WORK on GROUNDS 
Editor Park and Cemetery : In our 
rules regulating the construction of foun- 
dations \ve claim the right to do this work 
or have it done by the sexton or his em- 
ployees. We may have to defend our ac- 
tion in the courts. Do you know of any 
court decisions along this line, or is there 
anything published bearing on the legality 
of cemetery rules? — A. H. D., 111. 
Since this is a practical question of 
widespread importance, the law editor of 
Park and Cemetery has made a careful 
examination of the most authoritative ap- 
pellate court decisions handed down in the 
country and reviews them below. From 
these decisions it would seem that the 
right of a cemetery association to reserve 
to itself the making of improvements on 
individual lots depends upon the wording of 
the deeds to such lots and upon the by-laws 
of the association in effect at the time the 
deeds are issued. It also appears that the 
reasonableness of regulations adopted by 
the association is an important factor in 
determining their validity. 
The case that closely fits the above 
question was decided by a Pennsylvania 
court (Cedar Plill Cemetery Co. vs. Lees, 
22 Pennsylvania Superior Court Reports, 
405). In that case it appeared that the 
cemetery company had adopted the fol- 
lowing by-law : 
“To prevent confusion from the intro- 
duction of a variety of workmen, the trus- 
tees have made arrangements to have all 
the excavating, as well as the building of 
foundations for enclosures and for monu- 
ments, the sodding of lots and graves and 
cutting of grass, planting of flowers, shrub- 
bery, and trimming of the same, etc., per- 
formed under the direction of the superin- 
tendent at moderate prices.” 
In sustaining the validity of this regula- 
tion, the court said : 
“Ordinarily, a cemetery is laid out and 
planned according to a fixed scheme as to 
improvement of the real estate, the erec- 
tion of monuments, enclosure of lots, the 
character of trees and shrubbery to be 
planted,, and ornamentation in general. 
Anything which interferes with this gen- 
eral scheme is not only detrimental and in- 
jurious to the scheme itself, but to every 
lot which enters into the combination. It 
is of the first importance, therefore, that 
the association should assume and retain 
the absolute control, as is subject to be 
done in and by the deeds of conveyance 
and by the by-laws and regulations of the 
plaintiff company, of the erection of mon- 
uments and partitions between lots, the 
planting of trees and shrubbery and the 
general subject of ornamentation. This, 
in the nature of the case, can be done only 
under the supervision of one person, and 
in this case that person is the superin- 
tendent of the cemetery, who acts under 
the direction of and is supposed to be fa- 
miliar with the plans and purposes and 
general scheme of improvements of the 
association. * * * It is difficult to see 
how the rights of individual lot owners in 
respect to those things which are or may 
become objectionable to adjacent lots can 
be properly conserved without some such 
general and indeed exclusive control of 
the ornamentation of all lots as is provided 
for in the by-laws to which exception is 
taken. * * * There is no objection to 
the regulation of the plaintiff association 
on the ground of excessive charges or 
that the work necessary to be done in and 
about the care of lots of lot owners has 
not been faithfully and tastefully per- 
formed whenever requested.” 
In the Pennsylvania case, it appeared 
that a gardener who bore no relation to 
the association, and who was employed for 
some time by individual lot owners to 
keep their lots trimmed, was notified in Oc- 
tober that, commencing with the first of 
the following year, he would be excluded 
from the cemetery and that the by-law 
above quoted would be enforced. A suit 
was agreed upon to test the validity of the 
regulation, and, as above stated, resulted 
in favor of the association. 
But, in a later case, the Pennsylvania 
Supreme Court decided that where lot own- 
ers were authorized to construct mauso- 
leums on their lots, and no regulations had 
been adopted restricting the location of 
them, it was beyond the power of the 
cemetery board to prevent an owner from 
constructing a mausoleum at the side, 
rather than in the center, of his lot. (Pit- 
cairn vs. Homewood Cemetery Co., 77 At- 
lantic Reporter, 1105.) This decision, how- 
ever, cannot be deemed to affect the one 
above mentioned, because in the Pitcairn 
case there was no restriction as to where 
mausoleums should be constructed, when 
plaintiff became the owner of his lot. 
A similar conclusion was reached by the 
Illinois Supreme Court in the case of Rose- 
hill Cemetery Co. vs. Hopkinson, 29 North- 
eastern Reporter, 685. It was there de- 
cided that, after making a practice of 
granting permission for the construction of 
vaults on lots, the company could not arbi- 
trarily refuse permission in a particular 
case on the mere ground that erection of 
a vault would obstruct the view of 
other lots. Said the court: “A rule which 
would confer a right upon one lot owner 
in regard to the improvement of his prop- 
erty and deny the same right to another 
lot owner, the managers of the cemetery 
have no power to make or enforce.” In 
other words, all cemetery regulations must 
operate without discrimination between in- 
dividual lot owners. 
In another Illinois case (Ritchey vs. City 
of Canton, 46 Illinois Appellate Court Re- 
ports, 184), it was decided that where lots 
were sold in a cemetery at a time when 
there was no regulation preventing owners 
from making their own arrangements for 
the digging of graves, and the association 
afterwards transferred its property to the 
city, the city could not adopt a valid or- 
dinance depriving owners of the right to 
dig graves or have them dug by anyone 
they might select, so long as the work was 
done in a safe and proper manner. But it 
is to be inferred from the decision that 
where lots are bought when there is a 
regulation in force providing for the dig- 
ging of graves or doing other work on a 
lot by employees of the association, the 
regulation will be enforced, for a purchaser 
of a lot is clearly governed by regulations 
existing when he buys. 
The Connecticut Supreme Court of Er- 
rors has upheld the validity of a by-law 
forbidding planting, trimming, etc., of 
shrubbery, excavations, or construction of 
foundations, etc., except by consent and 
direction of the superintendent. (State vs. 
Scoville, 61 Atlantic Reporter, 63.) In this 
case the court recognizes the point over- 
looked in most of the other decisions that 
the public has an interest in burial grounds 
that deprives an individual owner of some 
of the absolute rights usually incident to 
the ownership of real estate. “Generally, 
one receiving from a cemetery association 
a deed of a burial lot does not thereby 
take a title to the soil itself. The rights 
of burial are so far public that the private 
interests so acquired to a limited use of 
particular lots for purposes of interment 
are subject to the reasonable police regula- 
tions of the association having charge of 
the same.” 
1 he New York Supreme Court held in 
the case of Johnstown Cemetery Associa- 
tion vs. Parker, 59 New York Supplement, 
821, that a regulation forbidding lot own- 
ers from cutting grass and weeds on their 
lots was unreasonable. But an examina- 
tion of that case shows that the deeds un- 
der which the lots were sold gave the own- 
ers the right to construct improvements 
and cultivate shrubbery, etc., subject to re- 
moval of improper objects by the asso- 
ciation. 
In the case of Silverwood vs. Latrobe, 
13 Atlantic Reporter, 161, the Maryland 
Court of Appeals decided that where an 
association had recognized, for more than 
twenty years, the right of owners to con- 
struct their own improvements, employees 
of the owners could not afterwards be pre- 
vented from making improvements under 
direction of the lot owners. 
A. L. II. Street. 
* * * 
Editor Park and Cemetery: It is evi- 
dent that your correspondent is rather new 
in cemetery business, because we who have 
been through the mill do not allow our- 
selves to be worried by these threatened 
suits which never amount to anything. I 
