conveniences for burying the dead; and the selectmen are authorized to make all necessary regulations concerning any public burial-grounds, or places for burying the dead, and for fencing and keeping the same in proper order. (Revised Statutes of 1863, Title 11, Ch. 18, Secs. 1 and 2.)

§1038. Whenever the selectmen of any town shall neg leet to repair, or put in repair the fence around any public burial-ground in said town, such town may be indicted for every such neglect, and on conviction, fined not less than fifty dollars, nor more than one hundred dollars, in the discretion of the court; and the fine must be expended in repairing the fences around such public burial-grounds, under the superintendence and direction of a commissioner appointed by the court for that purpose; and any person or persons sustaining any damage by cattle, horses, sheep, or swine breaking into any such public burial-ground, and injuring any grave, grave-stone, monument, shrubbery or flower, by reason of defective fences, he, she, or they may recover of such town double the amount of damage, before any justice of the peace in the county, or before the County Court of the county where such damage is sustained; though no town will be liable to indictment or damage in the cases aforesaid, unless the selectmen thereof shall have been notified twenty days previous, in writing, that the said fence was out of repair. None of these provisions, however, will apply to any burial-ground belonging to any association or corporation, nor to any burial-ground which is by law subject to any other control than that of the selectmen of the town. (Ib., Secs. 3, 4 and 5.)

§ 1039. Any person who shall willfully or knowingly turn any horse, cattle, sheep or swine into any burial-ground laid out for the purpose of interring the dead, or knowingly suffers the same to run in any such burying-ground which is

properly inclosed, is liable to a fine of twenty-five dollars, to be recovered in an action on the case, founded on the statute, by any citizen of the State who shall sue for the same; and any person who shall willfully and maliciously mar, deface, soil, injure or take away any miniature, portrait, engraving, or other symbol upon any grave-stone or other monument erected at the grave of any deceased person, is punishable by fine in a sum not exceeding one hundred dollars, or by imprisonment in the State prison, at hard labor, one year, or by both of such punishments, in the discretion of the court. (Ib., Secs. 6 and 7.)

§1040. The selectmen are authorized to remove the remains of the dead from any burial-grounds in all cases where from any cause, it is impracticable to preserve such burialgrounds in proper condition, and a removal of such remains may be required by a proper respect to the memory of the deceased, or when the selectmen, upon proper inquiry, are not able to ascertain that any descendant or relative of such deceased resides in the State, and in such cases the selectmen may also erect such monuments as may be necessary to perpetuate the memory of the deceased. This provision, however, is declared not to extend to any case where, upon proper inquiry, any descendant or relative of such deceased person can be found. (Ib., Sec., 8.)

1041. Whenever it may become necessary to enlarge any public burial-ground, or to establish a new one, for the interment of the dead, and whenever three or more freeholders of the town wherein the same is to be enlarged or established, shall apply in writing to the selectmen of the town, setting forth such necessity with a description of the land necessary for such purpose, such selectmen are required to examine such ground, and, if in their opinion the public good requires it, they must cause the same, or so much thereof as they deem

same,

necessary, to be surveyed; and they must set out and separate the same for that purpose, and thereupon consider and award to the owner or owners of such land, such reasonable damages as may be sustained in consequence of taking such land for that purpose. But before determining on such loca tion or damages, the selectmen must give notice in writing of such petition, and of the time and place of hearing the which must be delivered to such owners, or left at their last usual place of abode, at least six days previous to the time of hearing; the hearing may be adjourned, if necessary, and the selectmen are required at the time of making their decision, or as soon as may be thereafter, to make their return in writing upon or annexed to such petition, setting forth the notice given to such owners, and of the hearing and the setting out of such land, and of the survey and award of damages, including a copy of such survey, and cause the same to be recorded in the office of the town clerk, in the record of deeds, and the return, when so recorded, is made conclusive evidence of the facts therein stated; and the selectmen must also, at the time of making the award of damages, or within ten days after the recording of such return, and before entering upon such land, pay or tender to the owner or owners thereof, the amount of damages awarded; and if they refuse or neglect to pay the same within the time limited, the owner or owners may sue for and recover the same from the town, in an action on the case, in any court proper to try the same. (Ib., Sec. 9.)

§ 1042. Before those interested, or others acting under them, shall enter on such lands, they are required to pay or tender to the owner or owners the amount of damages awarded; and if any person be dissatisfied with the amount of damages awarded to him for the land so taken, he may, within thirty days after the return of the selectmen may be left for record, make application, by petition in writing, to

the County Court in the same county, at their next stated term, if there should be time for notice, if not, at the next succeeding term; and any number of persons aggrieved may join in the petition; and the petition, together with a citation for that purpose, must be served on the selectmen of the town at least twelve days before the sitting of the court; and thereupon the court must appoint three disinterested commissioners to inquire into the convenience and necessity of such land, as well as the matter of damages. (Ib., Secs. 10 and 11.)

§ 1043. The commissioners are required to give notice to one or more of the selectmen of such town, of the time and place, when and where they will make the inquiry and hear the parties; and on report of the commissioners, the court may establish or set aside the survey of such lands or such part thereof as may appear just, and may render judgment for the petitioners to recover against such town such damages as may appear by the report to have been sustained; and the court may tax the costs for either party as shall appear to be just and equitable. (Ib., Sec. 12.)

§ 1044. In case of application to the court as aforesaid, the opening of the land surveyed will be stayed until the decision of the court in the premises. The court may also fix the time for opening and occupying the same, and the payment of damages; and unless the damages are paid within the time fixed, the court may award execution for the same. No such land, however, can be taken within twenty rods of any dwelling house, except by the consent of the owner, unless it may become necessary to enlarge a burial-ground situated within twenty rods of any dwelling house or houses, and then the same may be so enlarged, or its portion of said burial-ground which increases its size in a direction from the dwelling house or houses nearest to the same, and does not extend to within

twenty rods of any other dwelling house. (Ib., Secs. 13 and 14.)

§ 1045. By the statutes of Vermont, cemetery associations. may be formed and incorporated in the same manner and with the same powers, liabilities, and privileges as societies for the support of the gospel, and literary and other associ ations. (Gen. Stat. 1863, Title 27, Chap. 90, Secs. 1-12.)

CHAPTER LXXVII.

BURIAL GROUNDS IN MASSACHUSETTS-HOW CONTROLLED CEMETERY ASSOCIATIONS-HOW ORGANIZED THEIR POWERS AND DUTIES-PENALTIES-BURIAL GROUNDS IN RHODE ISLANDLAWS RELATING TO-BURIAL GROUNDS IN CONNECTICUT— LAWS AND PENALTIES.

§ 1046. In the State of Massachusetts the burial-ground generally belongs to the town. At an early day it was a part of the meeting-house lot, laid out in the immediate vicinity of the house, and almost uniformly belonged to the town, and was subject to its exclusive care and control. In numerous cases the selectmen of the town have been empow ered and authorized to make and establish rules, orders and regulations for the interment of the dead, to establish the police of the burying-grounds, appoint and locate the places where the dead may be buried, to make regulations for funerals and appoint all necessary officers and persons to carry the same into effect. (Austin v. Murray, 16 Pick. 121.) In some instances, this sacred inclosure belongs to the parish or religious society, rather than the town, by reason of the original conveyance being made to the parish, or the precinct, which is equivalent to the parish. (Sudbury v. Jones,