Recently, Walter A. Sholar, Bullitt County Attorney, made a presentation to the Bullitt County Genealogical Society on cemetery law. In response to a request from the society, Mr. Sholar sent the following letter transcribed below. We are grateful to him for this work, and trust that others will find it useful as well.
Dear Bullitt County Genealogical Society,
Please find below a summary of the statutes and case law regarding cemeteries, along with corresponding citations to the law, as discussed during my presentation to your group on March 20, 2010.
The Zachary Taylor burial grounds in Jefferson County were conveyed to the United States by Kentucky for national cemetery purposes and Kentucky thereby ceded its jurisdiction to the United States. KRS 3.060.
Protection and Maintenance
Whenever any burial grounds lie within the corporate limits of a city the governing authorities of the city shall protect the burial grounds from being used for dumping grounds, building sites, playgrounds, places of entertainment and amusement, public parks, athletic fields or parking grounds. KRS 381.690.
Every cemetery in Kentucky, except private family cemeteries, shall be maintained by its legal owner or owners, without respect to the individual owners of burial plots in the cemetery, 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. KRS 381.697(1). The owner or owners of public or private burial grounds, regardless of size or number of graves, shall protect the burial grounds from desecration or destruction as stipulated in KRS 525.115(1)(a), (b), or (c) or from being used for dumping grounds, building sites, or any other use which may result in the burial grounds being damaged or destroyed. KRS 381.697(2). The provisions of KRS 381.697(2) shall not apply to the owner or owners of public or private burial grounds when the public or private burial grounds have been desecrated, damaged, or destroyed as the result of a crime by another as defined by KRS 500.080. The owner or owners of private burial grounds shall be required to construct cemetery protection structures only if the burial ground is located in a county with a county cemetery board and if the board provides compensation to the private burial ground owner for supplies, labor, and other expenses associated with such construction. KRS 381.697(3).
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. KRS 381.700.
The fact that any tract of land has been set apart for burial purposes and that a part or all of the grounds has been used for burial purposes shall be evidence that such grounds were set aside and used for burial purposes. KRS 381.710. The fact that graves are not visible on any part of the grounds shall not be construed as evidence that such grounds were not set aside and used for burial purposes.
Abandonment and Relocation
If a cemetery lot (a lot containing one or more grave spaces and located within a cemetery registered pursuant to KRS 367.946 in a county containing an urban-county government or in a city) is unused, meaning no bodies have been buried on the premises, for a period of 100 years, an officer of the cemetery may file an action in the Circuit Court of the county where the cemetery is located requesting that the burial rights in the unused portion of the lots in question be deemed abandoned and the cemetery be authorized to sell the rights upon entry of the court’s judgment. KRS 381.715. The unknown heirs of the original owner of the burial rights shall be named as defendants in the action. KRS 381.715. The petition shall include the following: the name of the original owner of the burial rights in the lots in question; the name of all persons buried in the lots and the date of burial, if known; the name, address, and telephone number of the cemetery office; an affidavit by the petitioner that:1. No person has been buried in the cemetery lots in question for a period of at least one hundred (100) years; and 2. The identity of any owner of the burial rights in the lot in question or any heir of the owner is unknown to any officer or employee of the cemetery and not discoverable after a good faith attempt by an officer or employee to identify the owner or heir. KRS 381.715.
Whenever in the opinion of the legislative body of a city of the first, second, third, fourth or fifth class a cemetery located within the boundaries of such city has been abandoned and the land comprising the said cemetery is needed for a public purpose, an ordinance may be enacted declaring such cemetery, as described by metes and bounds, to be abandoned and authorizing the city attorney to institute suit for the city or other governmental agency created by the city in the circuit court of the county in which the city is located against the property comprising the cemetery to declare the said cemetery abandoned and to vest title thereto in the said city, or any governmental agency created by it pursuant to or by authority of the Kentucky Revised Statutes. KRS 381.720. Upon the filing of the complaint the city or other governmental agency created by the city shall give notice thereof by publication pursuant to KRS Chapter 424. KRS 381.730. Within thirty days after the last advertisement, any party having a claim to the cemetery or any lot therein or to the mortal remains of a person interred therein, may file his claim in the said proceeding for damages as compensation for the value of his interest in the cemetery or lot to which he has claim. KRS 381.740. Upon the filing of the aforesaid claim the circuit court shall appoint as commissioners three impartial housekeepers who are owners of land. KRS 381.740. They shall be sworn to faithfully and impartially discharge their duties. KRS 381.740. The commissioners shall view the land involved and they may hear evidence or make any inquiry they desire touching the value thereof and award to the claimants who are owners thereof the value of the property taken. KRS 381.740. They shall return a written report to the office of the clerk of the circuit court describing separately the property which is the subject of each claim. KRS 381.740. Either the claimant or the complainant may file exceptions to this report and demand a jury trial. KRS 381.740. The commissioners shall be allowed a reasonable fee which shall be taxed as cost. KRS 381.740. If no claim is made within thirty days after the last advertisement, or if claims have been made and compensation duly paid either to the claimants or into court, the court shall declare the cemetery to be abandoned and enter judgment accordingly, vesting fee simple title in the complainant. KRS 381.750. 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. KRS 381.750. 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. KRS 381.750.
Upon application of the owner of property which contains an abandoned grave or cemetery (meaning it has been unattended for ten years), or whenever the fiscal court 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 and relocation. KRS 381.755(1). The order or resolution for the removal and relocation of the grave or cemetery shall specify and declare that at any time after the expiration of sixty days after the first publication of notice of such intended action pursuant to KRS Chapter 424, the court shall direct the removal and relocation of the grave or cemetery. KRS 381.755(2). Expenses for removal and relocation of any grave or cemetery under the provisions of this section shall be paid by the individual requesting such removal or if the removal is made in the best interest of the county the expenses shall be paid from county funds. KRS 381.755(3). Any grave or cemetery removed under the provisions of this section shall be relocated in a suitable place at the expense of the person or county requesting such removal and relocation. KRS 381.755(4). The cost of the proceeding shall be borne by the complainant, and the burden of proof shall be upon the claimant to establish his interest and to establish that it has not been abandoned. KRS 381.760.
If disinterment, removal, and reinterment of graves is effected by the Commonwealth of Kentucky or any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, or any electric power or lighting company, such disinterment, removal, and reinterment shall be performed by a funeral director duly licensed under the provisions of KRS Chapter 316; provided, however, a person holding a valid funeral director's license of another state may perform disinterment, removal and reinterment if the state in which such person is licensed has a reciprocal agreement whereby a license granted under the provisions of KRS Chapter 316 is recognized and accepted in that state. KRS 381.765.
Any person who violates any of the provisions of KRS 381.690 to 381.710 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense. KRS 381.990(2). Any person or corporation who violates KRS 381.697 shall be subject to a fine of not less than twenty-five dollars ($25) nor more than two hundred fifty dollars ($250). KRS 381.990(4).
A person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more. KRS 512.020. Criminal mischief in the first degree is a Class D felony.
A person is guilty of criminal mischief in the second degree when, having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $500 or more. KRS 512.030. Criminal mischief in the second degree is a Class A misdemeanor.
A person is guilty of criminal mischief in the third degree when: Having no right to do so or any reasonable ground to believe that he has such right, he intentionally or wantonly defaces, destroys or damages any property; or He tampers with property so as knowingly to endanger the person or property of another. KRS 512.040. Criminal mischief in the third degree is a Class B misdemeanor.
A person is guilty of desecration of venerated objects in the first degree when, other than authorized by law, he intentionally excavates or disinters human remains for the purpose of commercial sale or exploitation of the remains themselves or of objects buried contemporaneously with the remains. KRS 525.105. Desecration of venerated objects in the first degree is a Class C felony.
A person is guilty of desecration of venerated objects in the second degree when he intentionally:
Desecrates any public monument or object or place of worship; or Desecrates in a public place the national or state flag or other patriotic or religious symbol which is an object of veneration by the public or a substantial segment thereof. KRS 525.110. Desecration of venerated objects in the second degree is a Class A misdemeanor.
A person is guilty of institutional vandalism when he, because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals, knowingly vandalizes, defaces, damages, or desecrates objects defined in KRS 525.110. KRS 525.113. Institutional vandalism is a Class D felony.
A person is guilty of violating graves when he intentionally: Mutilates the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in or enclosing any cemetery or place of sepulture; or
Violates the grave of any person by destroying, removing, or damaging the headstone or footstone, or the tomb over the enclosure protecting any grave; or
Digs into or plows over or removes any ornament, shrubbery, or flower placed upon any grave or lot. KRS 525.115.
The provisions of KRS 525.115 shall not apply to ordinary maintenance and care of a cemetery nor the removal and relocation of graves pursuant to procedures authorized by and in accordance with applicable statutes. Violating graves is a Class D felony. The court shall order the defendant to restore the cemetery to its pre-damage condition.
A person is guilty of abuse of a corpse when, except as authorized by law, he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. KRS 525.120. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract. KRS 525.120.
Abuse of a corpse is a Class A misdemeanor, unless the act attempted or committed involved sexual intercourse or deviate sexual intercourse with the corpse or the deliberate failure to prepare, bury, or cremate a corpse after the acceptance of remuneration in accordance with any contract negotiated, in which case it is a Class D felony. KRS 525.120.
County Cemetery Board
A county acting under authority of KRS 67.680 may by ordinance create a county cemetery board that may apply to the Governor's Office for Local Development for grants to restore and maintain nonprofit cemeteries that do not receive perpetual care funds pursuant to KRS 367.952. KRS 67.680. The county cemetery boards shall meet three times annually in space provided by the fiscal court and shall have five volunteer members with no more than three representing the same political party. KRS 67.680. Members shall be appointed by the county judge/executive with approval of the fiscal court, shall have lived in the county for at least one year prior to appointment, and shall have demonstrated an interest in cemetery preservation, genealogy, local history, or a related area. KRS 67.680.
The Governor's Office for Local Development shall establish a county cemetery fund to receive appropriations, gifts, grants, federal funds, revolving funds, and any other funds from public and private sources. KRS 67.682. Moneys deposited in the fund shall be disbursed by the State Treasurer and any unallocated or unencumbered balances in the fund shall be invested as provided in KRS 42.500(9). KRS 67.682. Income earned from investment, including unallotted or unencumbered balances in the fund, shall not lapse, shall be returned to the Governor's Office for Local Development, and may be redistributed to other counties. KRS 67.682. The Governor's Office for Local Development shall promulgate administrative regulations related to responsibilities of the boards, grant appropriation amounts and eligible expenditures, application and reporting procedures, accountability criteria for grant recipients, and other issues of importance to the board's operation. KRS 67.682.
The owner of a cemetery lot may maintain either trespass for damages or an injunction to protect his rights from invasion either against a trespasser or the cemetery corporation. Hertle v. Riddell, Ky., 106 S.W. 282 (1907). Plaintiff sought a mandatory injunction against the cemetery and an adjacent lot owner requiring them to remove from the adjacent owner’s lot the remains of a dog which was buried therein. The Plaintiff’s daughter was buried in his lot prior to the adjacent owner’s dog being buried in her lot. In his petition, the Plaintiff stated that the burial of the dog has caused “great shame, humiliation, and distress” to himself and his family. He alleged that he has suffered great mental distress, that his burial lot will be rendered valueless by the continued occupation of the adjacent lot by the deceased dog, that he would be forced to remove the remains of his daughter, and that the presence of the dog was a nuisance which caused the Plaintiff peculiar and special injury and damage. The court held that because the charter and by-laws of the cemetery set out that the grounds were to be used only for the white race for cemetery purposes, the adjacent lot owner violated said charter and by-laws by using her lot to bury her dog. The Plaintiff was granted an injunction to prevent his right to use his lot for the purposes for which it was sold to him from being violated.
The maintenance of a commercial cemetery would not endanger the health of dairy farmers and others so as to constitute a nuisance. McCaw v. Harrison, Ky., 259 S.W.2d 457 (1953). That cemetery is constant reminder of death and has depressing influence on minds of persons who observe it or tends to depreciate value of property in neighborhood, or is offensive to aesthetic taste of adjoining proprietor, does not constitute a nuisance.
The statute governing maintenance of a “cemetery” refers to places where dead persons are buried and does not include a pet cemetery. Loid v. Kell, Ky. App., 844 S.W.2d 428 (1992).
I greatly enjoyed meeting with your group. If I can help in any further way, please let me know.
Very truly yours,
Walter A. Sholar
Bullitt County Attorney