Request By:
Ms. Gail Kaukas
Assistant Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, KY 40202-2771
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Susan N. Mastin, Assistant Attorney General
This letter is written in response to your request for an Attorney General's opinion as to whether or not it is possible for the City of Louisville to again use the "Western Cemetery" owned by the City as a site for indigent burials. The information that you have supplied to us indicates that the land now known as the "Western Cemetery" was acquired by the City of Louisville in October, 1830. The cemetery was divided into different sections, one set apart as a paupers' field, one being an African burying ground, one being a strangers' lot, and one to the burial of Roman Catholics. The City of Louisville's municipal reports published in 1893 indicate that it was very rare that any burial was made in the Western Cemetery and that many disinterments had been made. Also, the City of Louisville has records indicating that all persons buried in the section dedicated to the Roman Catholics had been disinterred and the remains reinterred elsewhere.
Since this land has already been designated by the City to be used as burial grounds, the City obviously has legal authority to authorize the burial of indigents in all areas of this land that the City knows does not contain the remains of a dead human being. That would include all parts of the land which have never been used for interments and all of the land in which disinterments have been made.
The question remaining is whether or not the City of Louisville can use those portions of the Western Cemetery where interments may have been made and there is no record of disinterments. Liability for desecration of graves may exist when land that has previously been used as a cemetery is reused as a cemetery without first removing and reinterring the remains of those previously buried. The right to burial and the right of undisturbed repose in the grave is deeply woven into the legal and cultural fabric of our nation. The Kentucky courts have consistently recognized the rights of the next of kin or surviving spouse to recover against any unwarranted interference with the grave of a deceased. Louisville Cemetery Association v. Downs, Ky. 45 S.W.2d 5, 6 (1932) See also OAG 82-523, which discusses the issue of the public's right to prevent the desecration of graves.
Therefore, the issue that must be addressed is abandonment. When does a cemetery become abandoned to the point that reuse as a cemetery would not be considered desecration of the graves? In Burton v. Roberts, Ky., 97 S.W.2d 413, 414 (1936), the court stated that an action for desecration exists as long as the graves are distinguishable and the cemetery is used. In that case, the court protected the cemetery even though it had been permitted to grow up in weeds so as to obliterate many of the marks separating the graves and the monuments were not aligned with the graves. On the other hand, there is no liability for desecration if the cemetery is abandoned and if there is nothing to indicate there are graves in the ground and the person is without notice that the graves exist. Johnson v. Kentucky-Virginia Stone Company, Ky. 149 S.W.2d 496, 498 (1941). The Am Jur discussion of abandonment states that "as long as a 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. " 14 Am Jur 2d., Cemeteries, § 21.
The question of abandonment is a mixed question of law and fact to be considered in light of all the surrounding circumstances. It could be argued that the Western Cemetery is not abandoned, since the City is on notice that the land was at one time used as a burial ground. However, if the public no longer recognizes the Western Cemetery as a graveyard and if there is nothing to indicate there are graves in the ground, it could be argued that the cemetery has been abandoned. In this Opinion, we could not attempt to adjudge whether or not the Western Cemetery has been abandoned. That issue can best be determined by a court of law examining all the facts and circumstances.
If the cemetery has not been abandoned as to authorize the desecration of the graves, the City can reuse this land as a cemetery only after making application with the fiscal court to authorize the removal and relocation of the graves that exist, pursuant to KRS 381.755. That statute authorizes the removal and relocation of cemeteries that have been left unattended for a period of ten years.