OAG OPINIONS:

OAG OPINIONS:

1955 OAG 35,908. Burial ground or cemetery cannot be used for building sites, and a city of the fifth class is without sufficient power to sell a portion of the cemetery for purposes other than burial sites.

OAG 82-523, 1 October 1982 (Steven L. Beshear, AG)

This is in response to your letter of request for an Attorney General’s Opinion “as to what the property owner’s rights are first of all to remove a private cemetery from their property and also what would be the public’s right to prevent someone from arbitrarily bulldozing down monuments and destroying the cemetery.” In response to your question, we will first answer the question of what a property owner’s rights are to move an abandoned cemetery. If the cemetery in question is located in a first, second, third, fourth, or fifth class city, KRS 381.720 governs as to what a city can do with the cemetery if the city determines the land compromising of the cemetery is needed for a public purpose. It states that the city’s legislative body can enact an ordinance declaring such cemetery to be abandoned and authorizing the city attorney to institute a suit for the city in the circuit court of the county in which the city is located against the property compromising the cemetery to declare the said cemetery abandoned and to vest title thereto in the said city. KRS 381.750 provides that after the proper procedures are followed, the court shall declare the cemetery to be abandoned and enter judgment accordingly. KRS 381.750 also states:

Thereafter claimants shall have thirty days in which to remove the mortal remains and monuments from lots to which they have been adjudged to have claim, the reasonable cost thereof to be paid by the claimant. If, within thirty days after entry of judgment said remains have not been removed by the claimants thereto, it shall be the duty of such complainant, through its proper officers, to pay for the removal of the monument and the disinterment, removal, and the reinterment of such body, or bodies, in such other cemetery in the county in which said city is located as the protesting lot owner may designate, or if no designation be made, to another suitable cemetery in the county.

The next area to discuss is the property owner’s rights if the cemetery isn’t located in a first, second, third, fourth, or fifth class city or even if it is located in such a city, but not on land needed for public purpose. A property owner who has a cemetery on his/her property that has been abandoned and wishes to remove and relocate that cemetery must make application to the fiscal court pursuant to KRS 381.755. This statute states:

Upon application of the owner of property on which is located an abandoned grave or cemetery or whenever the fiscal court or any county deems it to be in the best interest of the county to remove and relocate any such grave or cemetery the court may issue an order or resolution authorizing such removal or relocation.

Note that application may be made either by the owner of the property or by fiscal court if it deems it in the best interest of the county. In a previous Attorney General’s Opinion, No. 79-48, we stated that the owner of mineral rights is not able to make an application to fiscal court for removal and relocation pursuant to KRS 381.755(1). An abandoned cemetery is defined by statute to be one that is “left untended for a period of ten years preceding the date of the resolution for removal and relocation of the grave or cemetery.” KRS 381.755(5). The statute also requires that notice of such resolution be publicized which, of course, is intended to protect the interest of any remaining heirs. It also specifies in KRS 381.755(3) that the expenses for removal and relocation of any grave be paid by the individual requesting the removal in KRS 381.765 that if disinterment, removal or reinterment of graves is effected by the Commonwealth, then it shall be performed by a funeral director. Therefore, in order for a property owner to legally remove a cemetery on his/her property, the cemetery on the property must be untended for a period of ten years and the property owner must make application to fiscal court and follow the statutory procedures outlined in KRS 381.755 to KRS 381.767.

If a property owner has a cemetery on his/her property which has not been abandoned, as defined by KRS 381.755(5), the property owner does not have the statutory right to request the removal or relocation of this cemetery. Furthermore, the case law in this jurisdiction prohibits him/her from doing anything which interferes with the graves therein. The case, Hutchison v. Akin, Ky., 5 Ky. Op. 373 (1871), states the rule which has been followed consistently by Kentucky courts:

As to the grave yard, it is very evident that the appellant knew it was on the land when he purchased it, and being there the law without reservation, and inhibition in the deed, prohibits him from removing the stones that mark the resting place of the dead buried there, or of injuring and removing the enclosures around the grave yard and compels him to permit the relatives of those buried there to exercise the right of ingress and egress to and from said cemetery on proper occasions and for proper purposes.

Id, at P.374. Therefore, not only is the proper[ty] owner prohibited from interfering in any way with the grave yard on his property, he is compelled to provide ingress and egress for the relatives of persons buried in that cemetery.

Your second question is what would be the public’s right to prevent someone from arbitrarily bulldozing down the monuments and destroying the cemetery. Clearly, in Kentucky the next of kin to persons buried in a cemetery have a right to preserve the cemetery which the courts recognize and protect. Louisville Cemetery Association v. Downs, Ky. 45 S.W. 2d 5, 6 (1932).

A recovery may be had by the next of kin or surviving spouse for an unwarranted interference with the grave of the deceased, or for the infliction of an injury to a corpse, if either be done (a) maliciously, (b) or by gross negligence, (c) or wantonly, i.e., with a reckless disregard for the rights of another, (d) or for an unlawful or secret disinterrment or displacement thereof, or (e) an action of tresspass [sic], then quare clausum fregit which may be maintained by the holder of the title, or the person in possession, of the lot on which the grave is located, or (f) for the removal of a body from one grave to another by those in authority and control of the cemetery of burial ground, without notice, or an opportunity to him who in law is entitled to be present, if he desires, before its removal (citations omitted).

The term, next of kin, is defined in Northeast Coal Company v. Pickelsimer, Ky., 68 S.W. 2d 760, 763 (1934), as meaning “those who inherit from the deceased, the fee, interest, or easement, and the soil containing the dead body, under the statute of descent.” The next of kin have a right to protect the cemetery and graves of their relatives even though they are not owners of the land where the cemetery is located. Id. at p. 762. The Court in the Northeast Coal Co. case allowed the next of kin to recover against the mining company because their mining resulted in surface cracks in the graves. Similarly, in R.B. Taylor v. Kinser, Ky., 346 S.W. 2d 306 (1961), the Court upheld damages recovered by the next of kin when there was evidence that the defendants had caused some slipping of the earth, destruction of the grave marker, and a large quantity of dirt and debris to be thrown on the burial place. Another example of allowable recovery is in the City of Hopkinsville v. Burchett, Ky., 254 S.W. 2d 333 (1953), where the Court upheld a judgment against the city operating a cemetery for mental pain and anguish resulting from disinterment and reburial of plaintiff’s mother without giving notice or obtaining permission.

There is authority which says that the liability for desecration of a grave is only if such desecration is done recklessly, wantonly, maliciously, or by gross negligence. The courts have refused to impose liability against construction companies which have caused damages to cemeteries when the action was mere negligence. See, Johnson v. Kentucky-Virginia Stone Company, Ky., 149 S.W. 2d 496 (1941).

There are numerous Kentucky cases that recognize the next of kin’s rights in these instances, but for the purposes of this opinion we do not need to cite all of these cases.

Clearly, in Kentucky the next of kin to persons buried in a cemetery have protection against someone arbitrarily bulldozing down the monuments and destroying the cemetery.

OAG Opinion 23 May 1986 (David L. Armstrong, AG)

In Hutchison v. Akin, KY 5 KY Op. 373 (1871), the Kentucky court stressed the following:

OAG LETTERS:

David L. Armstrong, Attorney General

13 May 1986

This is in response to your recent letter. Although it is not entirely clear from your letter, you seem to ask whether a person can put a locked gate across a road which would presumably block a person’s access to a cemetery located close to the road.

Access to cemeteries cannot be blocked so as to deny ingress and egress to and from the cemetery. The Kentucky Court in Hutchison v. Akin, KY 5 KY OP 373 (1871) ruled the following as it applies to this issue:

In 14 AM JUR 2d 37 cemeteries p. 744 it was also stressed that “Persons entitled to visit, protect and beautify graves must be accorded ingress and egress from the public highway next or nearest to the cemetery, at reasonable times in a reasonable manner.”

Since the content of your letter is not clear, we have supplied this information not knowing if it directly answers your question. This is not a formal opinion of the Attorney General’s Office.

David L. Armstrong, Attorney General

16 May 1986

This is in response to your recent letter in which you state that you are in the process of purchasing a 33 acre tract of land in Kenton County which contains a small family cemetery and you ask what would be your responsibilities would be as to this cemetery.

In Hutchison v. Akin, KY 5 KY Op. 373 (1871), the Court stressed as follows as it pertains to your question.

In Brunton v. Roberts, KY 97 SW2d 413 (1936) the following was stressed:

Of lesser degree, yet substantial is the property which the owner of the burial lot has in the avenue and driveways. It is the right to the free and unstructured use in order to have access to his lot. This property descends to the lineal descendants of the owner uneffected [sic] by any device, and the right to possession, unless voluntarily relinquished, continues as long as the graves are marked and distinguishable and the cemetery continues to be used. Accordingly, a lot owner’s remedy is commensurate with his rights. Equity will enjoin an unwarrantable disturbance or interference with the burial ground or the graves therein.

I hope the above excerpts have helped you in answering your inquiry. I am also enclosing an opinion written by our office concerning property owners rights from removing a private cemetery from their property (See OAG 82-523).

This letter does not represent an official Attorney General opinion and is limited to the facts presented in this letter. I hope the content of this letter has satisfactorily answered your inquiry.

David L. Armstrong, Attorney General

18 August 1986

This is response to your request for an opinion regarding whether the private cemetery exception to the maintenance requirements of KRS 381.697 extends to KRS 381.755(5) in determining whether a cemetery has been abandoned. I apologize for the delay in responding to you. Our legal staff has been short-handed in recent months. I hope the delay has not inconvenienced you.

This response is not a formal Attorney General’s Opinion under KRS 15.025, and is restricted to the applicable facts as set forth in your letter.

As you state in your letter, KRS 381.697 requires all cemeteries except private cemeteries to keep the grounds “free of growth of weeds, free from accumulated debris, displaced tombstones or other signs and indication of vandalism or gross neglect.” KRS 381.755 sets forth the procedures for removing or relocating an abandoned cemetery of grave. Paragraph (1) of the statute states:

Upon application of the owner of property upon which is located an abandoned grave or cemetery or whenever the fiscal court of any county deems it to be in the best interest of the county to remove and relocate any such grave or cemetery the court may issue an order or resolution authorizing such removal or relocation (Emphasis added).

Paragraph (5) of KRS 381.755 defines abandoned:

For the purpose of this section a grave or cemetery shall be considered abandoned when left untended for a period of ten years preceding the date of resolution for removal and relocation of the grave or cemetery.

You ask whether private family cemeteries are exempt from this definition of abandonment since they are exempt from the maintenance requirements of KRS 381.697. You express concern that since you and other family members prefer not to keep your family cemetery in an “artificially manicured, golf-green landscape,” it would be adjudged abandoned.

Since the legislature did not insert an exemption for private family cemeteries in KRS 381.755(5), it seems that the legislature did not intend for private family cemeteries to be exempt from the definition of abandonment. However, the fact that a private cemetery does not mow the grass for ten years does not necessarily mean that the cemetery has been abandoned. KRS 381.755(5) defines “abandoned” as “left untended for a period of ten years.” This implies a greater standard then failure to maintain a cemetery in accordance with KRS 381.697.

First, the definition of “tend” is “to apply oneself to the care of: watch over; to have or take charge of as a caretaker or overseer; to manage the operations of.” Webster’s New Collegiate Dictionary (1977). Clearly tending a cemetery involves mroe [sic] than merely keeping it free from weeds.

Second, it is a widely accepted principle of law that the mere fact that for some years no new burials have been made and that graves have been neglected does not operate as abandonment. 14 Am Jur 2d Cemeteries p. 21. Generally, as long as the cemetery 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, it is not abandoned. Id.

Finally, the question of abandonment is largely one of intent. Of course, intent can be inferred from the acts of the parties and from the circumstances. Consequently, failure to maintain a cemetery could be construed as one indication of intent to abandon, but other circumstances could negate such findings.

In conclusion, private family cemeteries are not exempt from the definition of abandonment in KRS 381.755(5). Instead, the same definition of “abandonment” applies equally to all cemeteries. However, abandonment must be manifested by more than a mere failure to maintain a cemetery pursuant to KRS 381.697. Although neglect of the grounds might be one factor to consider in determining whether the owner has intended to abandon a cemetery, it is not conclusive. Whatever “tend” might mean, it seems to mean more than mere neglect of the grounds.

David L. Armstrong, Attorney General

23 April 1987

This is in response to your letter about protecting cemeteries. In your letter you ask whether a church can discard headstones from an old cemetery located on church property, or whether there are any laws that protect old cemeteries from being destroyed.

KRS 381.697 requires all cemeteries in Kentucky except private cemeteries to be maintained by the legal owner, “in such a manner so as to keep the burial grounds or cemetery free of growth of weeds, free from accumulated debris, displaced tombstones or other signs and indication of vandalism or gross neglect.” At the same time, KRS 525.110 makes it a Class A misdemeanor to “desecrate any public monument or object or place of worship or burial.” In addition, there are some federal laws that may or may not apply to this particular situation, including the Historic Sites Act of 1935, the National Historic Preservation Act of 1974 and the National Historic Preservation Act amendments of 1980. I do not know whether any of these federal laws would be applicable or not. Perhaps the Kentucky Historical Society can give you some guidance in this area.

Because of the conflicting laws in this area, this office cannot offer any legal advice to you. If this matter results in a legal dispute between you and the church, you should contact a private attorney for legal advice.

David L. Armstrong, Attorney General

12 August 1987

This is in response to your letter requesting an opinion from the Attorney General regarding the descent of cemetery lots. This response has been restricted to the applicable law based upon the facts you have presented, and does not represent a formal, legal opinion under KRS 15.025.

In your letter you ask the following: (1) Under Kentucky law, can a testor devise title to any unused burial lot that he acquired a fee simple title to? (2) Under Kentucky law, can a testator bequeath his easement or license rights in an unused burial lot by provisions of his Will? (3) Under Kentucky law, would a fee interest or license interest to a burial lot pass under the residuary clause of a Will? (4) Under Kentucky law, do unused burial lots owned by a descendent, whether descendent owned a fee simple title or a mere easement or license, automatically descend to heirs at law rather then according to the terms of his Will?

As you note in your letter, one who purchases a cemetery lot does not acquire title in fee simple to the property, but only a right of burial that is commonly designated as a easement or a license. Hook v. Joyce, Ky., 22 S.W. 651, 652 (1893); Hertle v. Riddell, Ky., 106 S.W. 282, 284 (1907); Brunton v. Roberts, Ky., 97 S.W. 2d 413, 415 (1936). In fact, it appears that this is the case even if the purchaser is given a deed to the burial plot, or a document that includes the terms used in a ordinary deed of conveyance. 14 Am Jur 2d Cemeteries §25. It is generally acknowledged that the burial easement is a property right that is recognized and protected by law. It is a right that can be protected against trespass, Brunton, 97 S.W.2d at 415, acquired by adverse possession, id., and can pass by descent to the heirs at law, Hook, 22 S.W. at 652.

It is the position of this office that, in addition, the burial easement can be passed on by the owner of the lot by a specific devise or bequest pursuant to the terms of a will. You are correct in your letter when you state that the Brunton case is not perfectly clear when it states that “this property descends to the lineal descendents of the owner unaffected by any devise...” This language could be interpreted in several ways. Nevertheless, the language of the Brunton case is merely dicta and is therefore not dispositive of this issue. Instead KRS 394.020 controls this issue. That statute states that “any person of sound mind and eighteen years of age or over my by will dispose of any estate, right, or interest in real or personal estate that he may be entitled to at his death, which would otherwise descend to his heirs or pass to his personal representatives, even though he becomes so entitled after the execution of his will.” [Emphasis added]. Because of this statute, this office believes that the legislature has expressed as public policy the right of any person to dispose of his or her property as he or she sees fit. Consequently, this office takes the position that one’s interest in the unused portion of a burial lot may be passed on by devise or bequest.

In your letter, you ask whether KRS 381.715 indicates a bequest or devise in a will will have no affect on the transfer of lots at death of the owner of the lots. KRS 381.715 was enacted to authorize a cemetery to request that burial lots that have not been used for at least 100 years be deemed abandoned by the Court. The statute authorizes the cemetery to name as defendants the in the action the unknown heirs of the original owner of the the burial rights, and to submit an affidavit stating that the identity of any heir of the owner is unknown. Since this statute does not refer to “heirs-in-law” or “legal heirs,” this statute should be interpreted to mean heirs in a very broad sense, including any devisee or recipient of a bequest. See Black’s Law Dictionary, 650 (5th Ed. 1979).

Finally, we address the issue of whether one’s interest in a burial lot can pass under the residuary clause of a will. In Chrisman v. Allman, Ky., 194 S.W.2d 175, 176 (1946), the court stated, “[T]here is always a presumption against intestacy, and the presumption is stronger where the residue of an estate is disposed of. It is true also that one of the functions of a residuary clause is to dispose of such property as the testator may have forgotten or have been ignorant of its ownership.” See also Sigmon v. Moore’s Adm’r, Ky. 180 S.W.2d 420, 422 (1944); Howe v. Howe’s Ex’x., Ky., 155 S.W.2d 196, 200 (1941).Since KRS 394.020 permits a person to dispose of any “estate, right or interest in real or personal estate” in his or her will, it is consistent to take the position that one’s interest in a burial lot may be disposed of in the residuary clause of a will as well as by specific bequest or devise.

To summarize the Attorney General’s position, a person’s interest in a burial lot is not a fee simple in the property, but rather is an easement or license for burial purposes. This easement is a recognized property right which is devisable. Although there are no cases or statutes on point, this Office takes the position that an interest in unused burial lots passes under the residuary clause of a will when there is no specific devise or bequest and does not automatically descend to the heirs-in-law.

David L. Armstrong, Attorney General

30 September 1987

This is in response to your letter of September 4, 1987, about the condition of your family graveyard. Although this office is prohibited by law from giving private legal advice, there are a couple of avenues of relief that might be available to you.

First, you should contact the County Attorney to ask whether the crime of desecration of venerated objects, KRS 525.110 has been committed. Second, you should contact an attorney in private practice to see whether there is any civil action, such as a lawsuit for trespass, that might be available to you.

Frederick J. Cowan, Attorney General

22 March 1988

This is in response to your request for information concerning the First Baptist Church’s plan to remove crumbling grave markers from its cemetery and replace them with one central marker listing the names of all persons buried there. This response has been restricted to the applicable law based upon the facts you have presented and does not represent a formal, legal opinion under KRS 15.025.

No specific statute addresses this situation, but there are two statutes which offer some guidance. First, KRS 381.720-381.755, set out specific provisions for notification of persons who have claims to the mortal remains and monuments buried in a cemetery which has been abandoned or which has been ordered relocated. Although the First Baptist Church’s cemetery is not abandoned and there are no plans to move it, it might be appropriate to contact survivors of the persons buried there and advise them of the church’s plan. If any survivors object to the plan, they can discuss those objections with the church.

You described the cemetery markers as “crumbling,” noting that some markers were no longer where they belonged and that other markers had been overturned. If the markers are beyond repair, removing them and replacing them would not violate the statute which prohibits desecration of graves.

Frederick J. Cowan, Attorney General

7 April 1988

This is in response to your question whether and outside container is required for burial. By outside container, I presume you mean a vault or other grave liner, which separates the casket from the ground. No state law requires you to buy a container to surround the casket in a grave; however, many cemeteries require an outside container so that the grave will not sink in. You should check with the individual cemetery on whether it requires an outside container for burial.

Frederick J. Cowan, Attorney General

22 April 1988

Thank you for contacting this office regarding your problem obtaining access to the gravesites of your ancestors.

I have talked with [the] Assistant Attorney General regarding your situation. She suggests that you go to the County Courthouse and look up the deed to [the] land. There may be an easement in the deed that would allow you access to this cemetery. That would be the easiest solution to your problem.

In the meantime, I have forwarded your request for an official Attorney General’s Opinion. As soon as I have more information, I will let you know.

Frederick J. Cowan, Attorney General

10 May 1988

This is in response to your question concerning desecration of graves. If you believe that a cemetery has been destroyed, you should report that information to your local law enforcement agencies. Your county attorney may also be able to assist with this problem.

Frederick J. Cowan, Attorney General

28 June 1988

Enclosed you will find a copy of Attorney General Opinion OAG 82-523, which I believe addresses the problems you have encountered trying to obtain access to the gravesites of your ancestors. You should take this Opinion to your County Attorney for action. This Opinion is advisory only and stands on its own merit.

In addition, you should refer your County Attorney to KRS 525.110 which deals with desecration of venerated objects to deterine [sic] whether or not desecration has occurred by letting the cows graze in the cemetery. This statute states:

(1) A person is guilty of desecration of venerated objects when he intentionally:

(a) Desecretes [sic] any public monument or object or place of worship or burial;

Good luck and it this office can be of any further assistance, please do not hesitate to contact us.

Frederick J. Cowan, Attorney General

26 September 1988

The situation, as I understand it, is that there is a cemetery located within the city limits of Louisville that is owned by the Doup Family. It is alleged that the cemetery is not being maintained properly. The City has done some maintenance. Your question is are there any laws currently in force that address this situation and what, if any, legislation is needed?

I am enclosing copies of several statutes that might be of some help. However, in the case of a small family cemetery, we have little jurisdiction. However, laws requiring property owners to keep their property maintained according to community standards should apply.

KRS 381.687 address the problem, however, it excepts private family cemeteries. KRS 381.700 states:

The governing authorities of any city within whose corporate limits any burying grounds lie may require the owner or those having claims to the grounds to properly care for them.

Therefore, the City of Louisville has the authority to require the Doup Family to maintain the grounds. However, you stated the City was reluctant to get involved.

KRS 381.770 states:

It shall be unlawful for the owner occupant or person having control or management of any land within a city to permit a public nuisance, health hazard or source of filth to develop thereon through the accumulation of rubbish or excessive growth thereon of weeds or grass.

This office is not considering any legislation in this particular area at this time. However, we would be happy to work with you in the event you make such a proposal.