Public vs. Private Cemeteries

The law contemplates generally two categories of cemeteries, public and private.  A public cemetery is one used by the general community, a neighborhood, or a church, while a private cemetery is one used only by a family or a small portion of the community. However, public use rather than ownership determines whether a cemetery is public.  Thus, a cemetery, though privately owned or maintained, may be deemed a public cemetery if it is open, under reasonable regulations, to the use of the public for the burial of the dead.  A cemetery, though privately owned, is properly classified as a “public cemetery” where it consists of a great number of burial plots or sites sold and for sale to the public.  Conversely, a family burying ground has been defined by statute as one in which no lots are sold to the public and in which interments are restricted to a group of persons related to each other by blood or marriage.

In Kingsbury v. Flowers, 65 Ala. 479, 485, the court held that “burial places for the dead are indispensable.  They may be the property of the public, devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the burial of his family or friends.  It is but a just exercise of his dominion over his own property.”  A municipal corporation may hold property in trust for a public burial ground or in a private or proprietary character as a private corporation.

In Garland v. Clark, 264 Ala. 402, 405-406 (Ala. 1956), the court held that for a place to be called a public cemetery, “the intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose, are sufficient.”

There are statutory provisions which apply to privately operated cemeteries.  For instance, Section 5 of the Act of 1903, Ill. Rev. Stat. ch. 21, para. 39 (1951), provides that when a cemetery is a privately operated cemetery, as defined in § 2 of the Cemetery Care Act, Ill. Rev. Stat. ch. 21, para. 64.1 et seq. (1951), enacted by the Sixty-fifth General Assembly, then such a cemetery association shall also comply with the provisions of the Cemetery Care Act[i].

The cemetery Care Act provides that these cemeteries are required to secure a license from the Auditor of Public Accounts before acquiring care funds.  In order to secure such a license, detailed information as to personnel and finances must be given and the license may be refused if certain specified conditions are not met.  A privately operated and licensed cemetery must file an annual report with respect to its care funds.  This report must show the income to and disbursements from the fund and list the securities in which the fund is invested. The books of such cemeteries must be open at all times to inspection.  In the administration of care funds, privately operated cemeteries are subject to examination, supervision, and regulation by the Auditor who may, upon certain conditions, revoke the license to handle care funds either temporarily or permanently.  Before accepting care funds in connection with the sale of a burial space, a private authority must specify in writing the nature and extent of the care to be furnished, for which it must require the deposit of a given amount based upon the sale price or the size of the burial space.  Except where excused by the act, these private associations are required to post a bond to insure the proper handling of care funds.[ii]

[i] Union Cemetery Ass’n v. Cooper, 414 Ill. 23 (Ill. 1953)

[ii] Union Cemetery Ass’n v. Cooper, 414 Ill. 23 (Ill. 1953)


Inside Public vs. Private Cemeteries