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 CEMETERY

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CEMETERY

tions, the safe and sanitary location and regulation thereof, and the protection of sepulture therein. In some States this statutory protection is more or less restricted to incorporated cemetery associations and is not directly applicable to church cemeteries. As a rule cemeteries throughout the United States are ex- empt from taxation and monuments therein from execution. The law is adverse to the disturbance of the dead in their last resting-place. In Alabama cemetery authorities removed the body of a child from a cemetery, which had been discontinued, to another cemetery that had been founded in place thereof, without giving the child's parents notice. The parents recovered damages to the amount of $1700 from the cemetery authorities. (18 So. R., 565.) In many of the States there are statutes mak- ing it. a criminal offence to remove or deface tomb- stones, fences, or trees in a cemetery.

The bodies of the dead belong to their surviving relatives to be disposed of as they see fit, subject, of course, to public sanitary regulations. (Bogert vs. Indianapolis, 13 Ind. R., 434.) The title of the lot- holder in a cemetery is rarely a title in fee simple. The right of burial conveyed by written instrument in a churchyard cemetery is either an easement or a licence, and never a title to the fee-holder. (Mc- Guire vs. St. Patrick's Cathedral. 54 Hun. N. Y., 207.) Where, for instance, the certificate of purchase reads, "to have and to hold the lots for the use and purpose and subject to t he conditions and regulations mentioned in the deed of trust to the trustees of the church", this was construed as a mere licence; and, as such, revocable. The regulations of the Church may, and usually do, limit the right of interment in the cemetery to those who die in communion with the Church; and the courts have held that the Church is the judge in this matter. (Dwenger vs. Gearv, 113 Ind. 114, 54 Hun. N. Y, 210.) One C—, a Catholic, received from the proper officer of a Catholic ceme- tery a receipt for seventy-five dollars, being the pur- chase money for a plot of ground in the cemetery. C — died a Freemason, and the cemetery authorities would not allow his body to be buried in the lot which he had bought. The case went to the highest courts in New York, and the cemetery authorities were upheld, it satisfactorily appearing that the rules of the Catho- lic Church forbid the burial, in consecrated ground, of one who is not a Catholic or who is a member of the Masonic fraternity. (People vs. St. Patrick's Cathe- dral, 21 Hun. N. Y., 184.) The Guibord Case at Montreal (187.5) may be recalled in this connexion. Guibord, an excommunicated man, was interred in the Catholic cemetery by a decree of a civil court. Bishop Hourget laid the portion of the cemetery thus desecrated under interdict. Bishop Dwenger, of the Fort Wayne Diocese, secured an injunction against one Geary, who desired to bun' the body of his suicide son in a lot owned by him (Geary) in the Catholic cemetery. The Supreme Court of Indiana upheld the bishop. (113 Ind., 106.)

While the right of eminent domain may be invoked to condemn lands for cemetery purposes, the same right may be employed to take the cemetery lands for such public purposes as extending a highway. How- ever, in some States there are statutes prohibiting the opening of streets through cemeteries. The Slate exercising its police power, or a municipality, when authority is delegated to it by the legislature, may for- bid the "further use of a cemetery for interments, or declare it a nuisance and a danger to public health. and authorize the removal of the dead therefrom; and this may he done by such authorities without recourse to eminent domain proceedings. Various questions have arisen as to the right of a cemetery lot-owner to erect a monument thereon ami as to his right to compel the cemetery authorities to keep the cemetery walks and grounds in good order and repair.

In the absence of special regulations reserving such matters to the discretion of the cemetery authorities, the right of the lot-owner has been affirmed in these particulars. (61 N. W. Rep., 842; :;ti S. \V. R., 802.) Trusts for the purpose of keeping the graves in repair are held to be charitable to the extent of excepting them from the statute against perpetuities. (Am. and English Encycl. of Law, V, 790.) The heir-at- law has a right of property to the monuments of his ancestors in the graveyard, and may sue any person defacing them. (3 Edw. Ch.. Rh., 155. i

For the cemetery legislation of the Province of Quebec, see Mignault, he Droit Paroissial, etc. (Montreal, 1893), in Index

S. V. Cimctirres; Dorais, Cntli I i Qln'bcc

(2nd ed., Montreal, 1905), nos. 53 b. and 66 sqq.: Tyi.eh, American Eccl. Law, Ch. 71-85; American and English I > ■■■■■;■ I. of Law, V, 781-98; Desmond, The Church and the Law (Chi- cago, 1898), c. xvi.

Humphrey J. Desmond.

Canadian Legislation Concerning Cemeteries. — In the Dominion of Canada, cemeteries are under the authority of the legislatures of the different provinces. Outside of the Province of Quebec, in the English-speaking provinces, the laws regarding them are, with slight variations, the same. In all the provinces, cemeteries are exempt from taxation. Cemetery companies are authorized by general stat- utes. In the Province of Ontario provision is made for the amount of capital to be subscribed, and a cer- tain percentage to be paid thereon, before an act of incorporation shall be granted, and "no such ceme- teries shall be established within the limits of any city". In the case of incorporated villages or towns, a cemetery may be established when the lieutenant- governor, in council, considers that there is no danger for the public safety, and that in the opinion of the Provincial Board of Health the proposed cemetery may, underall the circumstances, he safely permitted. It is enjoined that "no body shall be buried in a vault or otherwise, in any chapel or other building in the cemetery, nor within fifteen feet of the outer wall of such chapel or building. No grave may be re- opened for the removal of a body, without permission of the corporation authorities, or the order of a judge of the County Court, excepting cases where the Crown may order the removal of a body for the pur- pose of legal inquiry". The company must furnish a grave for strangers and for the poor of all denomina- tions free of charge, on a certificate, in the latter case, of a minister or a clergyman of the denomination to which the deceased belonged, thai the represental ives of the deceased are poor and cannot afford to buy a lot in the cemetery. The shareholders in such ceme- tery, cannot receive more than eight per cent on their investments. All excess must be applied to the preservation, improvement, and embellishment of the land of burial-grounds, and to no other purpose. Pen- alties are imposed upon any one destroying or di ing any tomb, injuring trees or plants, or committing any nuisance in the cemetery (see ch. cccvii, of the Revised Statutes of Ontario, 1897, an " Ait respecting the Property of Religious Institutions").

The Criminal Code of Canada enacts penalties for not burying the dead, for indignity to dead bo for forging, mutilating, destroying, or concealing registers of burials. The body of every offender executed, shall be buried within the walls of the prison, within which judgment of death is executed on him, unless the lieutenant-governor in council orders otherwise.

Any religious society or congregation of Christians may. among other tilings, acquire land for a ceme- tery. These are subject to the general rules, as the

precautions for health, etc. The provisions of this

law have been extended to the Church of England, and

"all rights and privileges conferred u] any society

or congregation of Christians, in virtue of this statute,

shall extend in every respect to the Roman Catholic