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1854:
California enacted the
first of a series of legislative Acts concerning cemeteries in
1854. The first cemetery related law was intended to provide protection of the state's earliest burying
grounds, and to ensure that those who would desecrate them in any way,
would be severely punished. The 1854 act also provided the first
definition of what was considered by the State to be a "public
grave-yard."
In
Section 4 of the 1854 act, any place where six dead bodies had been
buried was "declared" to be a "public
grave-yard." This declaration by the Legislature that the
lands that were in use for burying grounds were public grave-yards was
similar in nature to the way in which both the State and the counties
were then making declarations that roads used by the public were
"public highways."
Furthermore, in
1854 all land in California not previously confirmed as Spanish/Mexican
Land Grants according to the Treaty of Guadalupe Hidalgo, were publicly
owned. The federal government had not yet begun the land surveys
that would eventually provide the legal descriptions and title to land
within the state. Those would not be completed until between 1865
and 1880. (Some surveys have yet, today, to be completed.)
Therefore, at the
time that the California Legislature was declaring those lands where six
or more bodies had been buried to be "public grave-yards," the
land was already in the ownership of the public. Not until the
federal government issued the federal land patents would those who
claimed the land held by them actually acquire a legal private
title.
By the time the
land patents finally issued (especially those that issued after
1872), the vast majority of the cemeteries declared by the State
in 1854 to be "public grave-yards," had been in use by the
public continuously since the early or mid-1850s. Many of those
cemeteries continued to be used after the issuance of the land patents,
and many of those remain in use today. 1859:
In 1859, the legislature enacted an Act that authorized the
incorporation of associations that were known as Rural Cemetery
Associations. From a review of the Bills that were passed from
1857 to 1859, it is clear that the Legislature had received numerous
requests from private land holders to relocate cemeteries that had been
established on the lands they were claiming. Probably as a result,
the legislation authorizing the establishment and incorporation of rural
cemetery associations may have been intended to engender an atmosphere
within certain communities that would help provide for the supervision
and oversight of already existing cemeteries. It may even have
been intended to promote the donation to the association of those
cemeteries lands held by private owners. This statute was amended
several times over the ensuing years before it was repealed in 1931.
1872:
By 1872, California was struggling under the weight of twenty-two years
of statutes previously enacted, none of which were found in any
particular order. Burdened by the inability to adequately provide
review of the prior statutes, the Legislature authorized the creation of
the California Code Commission, a body of jurists that was empanelled
for the sole purpose of codifying the states' laws. The original
intent was to merely re-order and compile the statutes in a manner
that they could be more easily referenced.
After the Commission
began its' work, it became clear that many of the existing laws were
outdated and that others were perhaps in need of amending. The
result of their work was the Codified Statutes of California, and created the Political Code, the Government Code and others, some of
which remain today, although many have been re-ordered again.
Within Chapter V
of the Political Code, entitled Cemeteries and Sepulture, the
Code Commission began the new laws on cemeteries with Section 3105,
which provided that the "title to lands used as a public
cemetery or grave yard, situated in or near to any city, town, or village, and
used by the
inhabitants thereof continuously, without interruption, as a burial
ground for five years, is vested in the inhabitants of such city, town,
or village, and the lands must not be used for any other purpose than a
public cemetery." Through this part, the Legislature
provided that the cemeteries used by the public would acquire a legal
public title.
One thing the
Code Commission did not provide, however, was the mechanism through
which the title would pass to the public. Therefore, lacking the
requirement that counties or cities receive grant deeds for the lands
used as public cemeteries or grave yards, few such deeds ever
exchanged. The lack of a paper instrument, however, does not act
to bypass or extinguish in any way, the public title acquired by those
public cemeteries that were used as prescribed in Section 3105.
For cemeteries
which met the "prescriptive use" requirement of Section 3105,
it is said they acquired a public title "through operation of
law." That is to say, that the law said it was to be and
therefore it was.
Because those
cemeteries that met the criteria established by Section 3105 did acquire
a public title, no person claiming private ownership of a cemetery
after the date on which the title vested in the public, has a valid
claim adverse to the public title. Since at least 1872, California
has exempted public land from the effects of adverse possession
laws. (See Civil Code Sec. 1007 related
to adverse possession).
1899:
In 1899, the Legislature approved an act supplemental to the Rural Cemetery Associations Act,
which
authorized the rural cemetery associations to erect, purchase, or lease
buildings and furnaces and other works for cremation of human
bodies. It also allowed the associations to erect places for the
placement of cremated human remains. Further, the 1899 Act also
spoke to the disposal of victims who had died from epidemic or
contagious diseases.
1909:
In 1909, the State enacted
legislation that provided for the formation of Public Cemetery Districts
to enable members of specifically designated boundaries to maintain,
operated and acquire cemeteries to provide for the burial needs of their
communities. In all likelihood, it was
precipitated by the need for counties to provide closer supervision and
administration of the numerous county public cemeteries that
existed.
1911:
In 1911, two more pieces of cemetery legislation were enacted.
Approved on April 24, 1911, Chapter 577 established the requirements
that would need to be met for the removal of human remains within
cemeteries located in a city or city and county. It was primarily
enacted to assist the removal of the cemeteries within the city and
county of San Francisco.
Chapter 578, also
approved on April 24, 1911, prohibited the opening of streets,
alleys or roads within the boundaries of a cemetery unless consent was
received from the cemetery authority.
1921:
Public
cemetery district law was revised in 1921. Public cemetery
districts were allowed to establish, within certain limits, the amount
of taxes necessary to support the needs of the district. It is
most likely the 1921 revised public cemetery district law was a result
of the need to provide a more democratic process in how those districts
became formed.
1931:
The General Cemetery
Act was enacted in 1931 and became effective on August 14, 1931 (this date
is referenced in a 1939 amendment that exempted existing cemetery
corporation from state licensure). This legislation would act to
repeal many earlier statutes, although the main purpose appears to have
been the establishment of tighter controls and regulation. Amended
in 1939, it was later replaced by divisions VII and VIII of the Health and
Safety Code (enacted ??), where the main focus of the states' cemeteries
laws are found today. [Transcription
under construction.]
To
see the full text of the above
go to
www.usgennet.org/usa/ca/county/eldorado/history_law.htm
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