Abandonment or Discontinuance of Cemetery

A property which has been dedicated or used for cemetery purposes may be abandoned so far as such purposes are concerned, apart from any rights of interested parties to have a cemetery continued as such[i].  The question of abandonment can be inferred from the acts or recitals of the parties, interpreted in the light of all the surrounding circumstances.  Such abandonment is a question of fact or a mixed question of law and fact[ii].  However, a cemetery is not abandoned as long as it is kept and preserved as a resting place for the dead with anything to indicate the existence of graves, or as long as it is known and recognized by the public as a graveyard[iii].  The fact that for some years no new interments have been made and that the graves have been neglected does not operate as an abandonment and authorize the desecration of the graves, where the bodies interred in a cemetery remain therein and the spot awakens sacred memories in living persons[iv].

Matters going to the question of abandonment are:

  • the actual condition of the cemetery,
  • whether the identity of the cemetery has in fact been destroyed, and
  • whether the cemetery is recognizable and known to the general public[v].

However, a finding that the use of an area as a cemetery has been abandoned is supported, where evidence shows that there are no tombstones and no burials have taken place in many years[vi].  However, where the family has ceased to visit the cemetery and they have so long neglected to care for it that the ground is no longer recognizable as a cemetery, the family burial ground has been abandoned.  Merely because further interments in a cemetery become impossible, it does not lose its character[vii].  However, a private cemetery may be considered abandoned, where through changed conditions or the passage and ravages of time, its identity is destroyed[viii].

There is a presumption in favor of leaving the cemetery undisturbed on an application for cemetery relocation.  The governing authority must balance the applicants’ interest in disinterment with the public’s and the descendants’ interest in the value of the undisturbed cultural and natural environment[ix].  By the claim of a burial lot owner that he/she has a freehold interest in the lot, a cemetery owner will not be prevented from abandoning its cemetery and from removing the remains of deceased persons buried therein[x].  To preserve the cultural heritage of the county and the cemetery, evidence of a lack of maintenance and inappropriate surroundings will support the relocation of a cemetery site[xi].

The right to occupy land with a cemetery and maintained as such is subject to the reasonable exercise of the police power.  However, where land becomes no longer suitable for the cemetery use to which it was dedicated because of the surrounding circumstances or changed conditions, the discontinuance of such use may be required by the legislature or a municipality[xii].  In large cities it becomes necessary to prohibit further interments in certain cemeteries on account of their menace to the public health and also to require the removal of the bodies interred therein.  In the abolishment of cemeteries, the legislature has the same power as it has in their establishment.  Whenever it becomes necessary, the legislature may by statute direct the discontinuance of a cemetery and the removal of the bodies.  It may delegate its power to a municipality, which may enact an ordinance to effect the same result[xiii].

In this regard, the police power must not be exercised arbitrarily or unreasonably[xiv].  Where there is a public necessity for the discontinuance, the power to require the discontinuance of the use of a cemetery, necessarily includes the power to determine whether such public necessity exists.  The determination of the legislature is conclusive upon the courts[xv].

When the use is terminated and the cemetery abandoned, there is a reverter to the original donors or their legal representatives, free of such use.  This rule applies to both statutory and common-law dedications.  Reinterments in land that have once been definitely abandoned as a cemetery do not have the effect of preventing a reverter[xvi].  However, a different situation exists where there is an actual conveyance of lands[xvii].  In such situations, whether the land reverts to the grantor on the abandonment of the cemetery depends on whether the conveyance was absolute.  If so, there is no right of reverter or it constituted a conveyance on condition that the use of the premises for a cemetery be continued.  Thereafter, the grantor or one succeeding to his/her rights is revested with title on a breach of the condition[xviii].

[i] Mayes v. Simons, 189 Ga. 845 (Ga. 1940)

[ii] Fairlawns Cemetery Ass’n v. Zoning Com. of Bethel, 138 Conn. 434 (Conn. 1952)

[iii] Adams v. State, 95 Ga. App. 295 (Ga. Ct. App. 1957)

[iv] Dangerfield v. Williams, 26 App. D.C. 508 (D.C. Cir. 1906)

[v] Boyd v. Brabham, 414 So. 2d 931 (Ala. 1982)

[vi] Gunter v. Molk, 663 S.W.2d 674 (Tex. App. Beaumont 1983)

[vii] Tracy v. Bittle, 213 Mo. 302 (Mo. 1908)

[viii] McDonough v. Roland Park Co., 189 Md. 659 (Md. 1948)

[ix] Hughes v. Cobb County, 264 Ga. 128 (Ga. 1994)

[x] Petition of First Trinity Evangelical Luthern Church, 214 Pa. Super. 185 (Pa. Super. Ct. 1969)

[xi] Hughes v. Cobb County, 264 Ga. 128 (Ga. 1994)

[xii] Dickinson v. State, 227 So. 2d 36 (Fla. 1969)

[xiii] Masonic Cemetery Ass’n v. Gamage, 38 F.2d 950 (9th Cir. Cal. 1930)

[xiv] Smith v. Ladage, 397 Ill. 336 (Ill. 1947)

[xv] Hornblower v. Masonic Cemetery Asso., 191 Cal. 83 (Cal. 1923)

[xvi] Campbell v. Kansas, 102 Mo. 326 (Mo. 1890)

[xvii] Tracy v. Bittle, 213 Mo. 302 (Mo. 1908)

[xviii] Sapper v. Mathers, 286 Pa. 364 (Pa. 1926)


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