Some Kentucky Attorney General Opinions Related to Cemeteries

The following are some of the Attorney General opinions that are related to cemetery preservation. It is not a complete list and might not be up to date. Check www.ag.ky.gov, www.Louisville.edu, and your attorney for more information. Excerpts of some opinions, stated in part:

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: 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. 1 Vol. R.S.P. 412, 413 ... P 374.