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Land Dedication For Cemetery Purposes

Land may be dedicated to the public for cemetery purposes.[i]  No particular form or ceremony is required to accomplish such a dedication in the absence of a statute.  The factors required for dedication are:

  • the intention of the owner of the land to dedicate it for a public cemetery,
  • the acceptance and use of the same by the public, or
  • the consent and acquiescence of the owner in the long-continued use of lands for such purpose.[ii]

The dedication may be made by grant or written instrument.  However, it is not necessary that any conveyance be made or that there be any person capable of taking a conveyance other than in trust.[iii]  Acceptance by the public may be implied from acts and from the use of the land.  When the dedication is beneficial, greatly convenient, or necessary to the public, an acceptance will be implied from slight circumstances.[iv]  The method and formalities to be observed in dedicating a burial ground are prescribed by statute in some jurisdictions.[v]

The legal meaning of “dedication” is the intentional appropriation of land by the owner to some proper public use.  The essence of a dedication for public use is that it shall be for the use of the public at large.  A private or family cemetery or rights incident to it can be established or acquired only by:

  • a means, other than dedication, which is legally sufficient to accomplish the creation or a transfer of an interest in real property, or
  • an appropriation pursuant to the provisions of an applicable statute.[vi]

However, land can be established as a private burial ground without a deed by dedication, by the act of setting apart a parcel of land for a family burial plot as a “dedication.”[vii]

A common-law dedication of land for a cemetery does not extinguish the dedicator’s title.  The fee remains in the dedicator with a possibility of reverter on the abandonment of the cemetery, although the dedication does operate to reduce his/her rights as an owner.[viii] Property dedicated for use by the general public as a cemetery and which continues to serve that public purpose is:

  • not susceptible to ownership,
  • cannot be alienated, and
  • is not subject to prescription.[ix]

At least in the absence of any authorized exercise of the power of eminent domain, when a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose.[x]  The owner of the fee is subject to a trust for the benefit of those entitled to use the land as a place of burial.  Moreover, he/she has no right to recover the use of the land for any enjoyment or purpose of his/her own.[xi]  The owner can do nothing which interferes with the use of the land as a cemetery.  He/she cannot restrict the rights of relatives and friends to visit and care for the graves.[xii]

The dedication of a public cemetery is a real right in the nature of an irrevocable covenant running with the land.  Moreover, it is an implied contractual relationship that binds the owner and irrevocable.[xiii]

The conveyance of land set aside for a cemetery limits the use to which the property can be put to and not the title which the grantor conveys.[xiv]  Each lot owner has an interest in the entire ground of the cemetery, to be kept as an entirety, and to be perpetuated and cared for by the corporate body, if the cemetery company has dedicated land for the burial of the dead, and has held out to lot owners that the entire cemetery will be forever under the protection of a perpetual corporation, charged with the duty of laying out and ornamenting the grounds.[xv]  If a municipality has accepted, on behalf of the public, lands dedicated as a cemetery, and burials have been made therein, it has no authority to sell and convey the lands to a private person and thereby disable itself from executing the trust of maintaining such burial place without express legislative authority.[xvi]  Moreover, a municipality cannot grant lands which have been dedicated as a cemetery and used for that purpose, to a private corporation, if  the latter intends to make use of the premises other than as a burial ground.[xvii]  However, a city is permitted to alienate the lands to a cemetery corporation, if lands are conveyed to the city to be used for a cemetery, but it is expressly provided in the conveyance that the city may terminate the use of the lands, or any portion thereof, as a cemetery.[xviii]

[i] Garland v. Clark, 264 Ala. 402 (Ala. 1956)

[ii] Arlington Cemetery Corp. v. Bindig, 212 Ga. 698 (Ga. 1956)

[iii] President, Recorder & Trustees of Cincinnati v. Lessee of White, 31 U.S. 431 (U.S. 1832)

[iv] Arlington Cemetery Corp. v. Bindig, 212 Ga. 698 (Ga. 1956)

[v] United Cemeteries Co. v. Strother, 332 Mo. 971 (Mo. 1933)

[vi] Grinestaff v. Grinestaff, 318 S.W.2d 881 (Ky. 1958)

[vii] Frost v. Columbia Clay Co., 130 S.C. 72 (S.C. 1924)

[viii] Mingledorff v. Crum, 388 So. 2d 632 (Fla. Dist. Ct. App. 1st Dist. 1980)

[ix] Faust v. Mitchell Energy Corp., 437 So. 2d 339 (La.App. 2 Cir. 1983)

[x] Floral Hills Memory Gardens v. Robb, 227 Ga. 470 (Ga. 1971)

[xi] Greenwood Cemetery, Inc. v. MacNeill, 213 Ga. 141 (Ga. 1957)

[xii] United Cemeteries Co. v. Strother, 332 Mo. 971 (Mo. 1933); Greenwood Cemetery, Inc. v. MacNeill, 213 Ga. 141 (Ga. 1957); Vidrine v. Vidrine, 225 So. 2d 691 (La.App. 3 Cir. 1969).

[xiii] Faust v. Mitchell Energy Corp., 437 So. 2d 339 (La.App. 2 Cir. 1983)

[xiv] Choctaw & Chickasaw Nations v. Board of County Comm’rs, 239 F. Supp. 650 (E.D. Okla. 1965)

[xv] Newell v. Cleveland Cemetery Ass’n, 61 Ohio App. 476 (Ohio Ct. App., Cuyahoga County 1938)

[xvi] RITTER v. COUCH, 71 W. Va. 221 (W. Va. 1912)

[xvii] La Societa Italiana Di Mutua Beneficienza v. San Francisco, 131 Cal. 169 (Cal. 1900)

[xviii] Wright v. Morgan, 191 U.S. 55 (U.S. 1903)

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