First Parish in Shrewsbury v. Smith, 14 Pick, 297, 301: "The fact, probably, was that towns, parishes, and proprietors often consisted so nearly of the same individuals that a grant or appropriation of one of these bodies to another was little more than an appropriation by themselves, in one capacity, to the use of themselves in another." And in Lackin v. Ames. 10 Cush. 198, 218: "Although, in early times, the establishment, care, and control of burial grounds, like the support of schools, might have been partly a parochial, and partly a municipal, duty, yet before the erection of a new parish in the town of Pepperell, in 1831, they were regarded as appertaining rather to towns than to parishes. We cannot find, either in the statutes or the history of Massachusetts, any clear line of distinction between the duty or usages of towns and of parishes in this respect. Sometimes land was set apart or bought and owned by the town or district for this purpose, and sometimes by the parish. Instances of ancient ownership by towns, by districts, and by parishes are referred to in First Parish in Shrewsbury v. Smith, 14 Pick. 297; Bachelder v. Wakefield, 8 Cush. 243; Lakin v. Ames, 10 Cush. 198; and there appears to be no doubt that money for providing, enlarging, and maintaining them was raised by each of these corporate bodies. More than 200 years ago the town of Boston bought land for burying grounds; the Chapel, Copp's Hill, and the Granary Burying Grounds being the earliest. Shurtleff's Topog. & Hist. Description of Boston, 182 et seq.; 1 Memorial History of Boston. 554, 555; 2 Memorial History of Boston, 528, 529. In the general legislation of the commonwealth, burying places, whether belonging to towns, districts, parishes, or precincts, were early spoken of, in connection with other pieces of land, as "appropriated for the general use, ease, or convenience of the community," and provision was made for defining their boundaries and protecting them from incumbrances. St. 1786, c. 67, § 7, and St. 1786, c. 81, § 6, reenacted in Rev. St. c. 24, §§ 61, 63. By St. 1829, c. 141, § 1, the First Parish in Rowley was authorized to assess a tax for the enlargement of its burial ground, or to purchase a new one, on all points within its territorial limits of the said parish, and on estates within said limits, for the use and benefit of all the inhabitants living within said limits, and their successors forever. No general statute which in express terms authorizes the expenditure of

money for the purchase and care of land for this purpose has been found, earlier than St. 1829, c. 107, in which towns, districts, and parishes or religious societies are all put on the same footing. The statute is as follows: "Be it enacted," etc., "that the inhabitants of each town, district, parish, or religious society within this commonwealth, qualified to vote in town, district, or parish meetings, shall have power, at any meeting called for that purpose, to raise, in the same manner that other town, district or parish charges may now by law be raised, such sum or sums of money as they shall deem necessary for the purchase of lands for burial grounds, and for the care and preservation of the same." This, as we believe, was merely giving the express sanction of law to what had long been a prevailing usage. The above statute, when incorporated into the Revised Statutes, was divided; the part relating to towns being contained in Rev. St. c. 15, § 12 (which included districts-Rev. St. c. 2, § 6, cl. 17), and that relating to parishes being found in Rev. St. c. 20, § 18.

The time when exclusive rights of burial in particular lots were first assigned or sold to families or individuals is involved in some obscurity. The power to do this also was probably at first assumed by towns and parishes, and afterwards had the sanction of express legislation. Before the year 1715 private tombs were in use in the Chapel Burying Ground, and others were added from time to time in that and the other burying grounds of Boston. Shurtleff's Hist. pp. 186-193, 200-205, 212, 213, 233, 244, 249, 250. These tombs were sometimes built, it would seem, by individuals, and sometimes by the town, and sold to individuals. In an investigation before a committee of the city council of Boston, in 1879, concerning the expediency of prohibiting further interments in King's Chapel and Granary Burying Grounds, much information as to the early usages in respect to burials and burial rights was brought out, as shown in City Documents of 1879, Nos. 47 and 96, where extracts from the town records are printed. It seems that as early as 1721, and in the succeeding years, the privilege of building a tomb in the Granary Burying Ground, and probably in the others also, was usually granted by the town officers to any applicant without direct compensation for the land, but upon certain prescribed conditions, as to making and maintaining the wall, and paying a proportion of the expense of a

drain. In 1738 certain tombs appear to have been built for the town, and afterwards disposed of by the selectmen. And in 1807 a tomb was sold for $300, and the town assumed control of tombs whose owners had failed to keep them in repair, and were out of reach, and voted to "sell them for the advantage of the town." Tombs so held by individuals were private property, and transferable as such. An instance of such a sale is found referred to in the town records in 1802, and another in 1807. By St. 1823, c. 93, § 8, tombs in use were exempted from attachment and execution, and in Rev. St. c. 97, § 22, cl. 7, this exemption was extended to rights of burial. This exemption was not limited to tombs and rights of burial in private soil, but clearly included rights possessed by individuals in the public or common burying grounds. The first private incorporated cemetery company, so far as ascertained, was the Massachusetts Horticultural Society, which by St. 1831, c. 69, was authorized to appropriate a part of its land for a rural cemetery or burying ground, to lay out lots for family and other burying places, and to grant rights of burial. This was the origin of the cemetery at Mt. Auburn, and a new corporation was formed under St. 1835, c. 96, by the name of the Proprietors of the Cemetery at Mt. Auburn, which succeeded to the property, powers, and privileges of the Horticultural Society in respect to the cemetery, with the restriction, however, that all of the proceeds of sales of lots which said proprietors were allowed to retain should be forever devoted and applied to the preservation, improvement, embellishment, and enlargement of the cemetery and garden, and the incidental expenses thereof, and for no other purpose whatsoever. This would effectually cut off all right to declare dividends. After this, charters for private cemetery companies were not infrequent. See St. 1836, ch. 46; St. 1837, ch. 130. By St. 1834, ch. 187, § 1, re-enacted in Rev. St. ch. 130, § 21, a penalty was imposed for making a road, canal, etc., “over, through, in, or upon such part of any inclosure, being the property of a town, parish, religious society, or of private proprietors, as may be used or appropriated for the burial of the dead," without consent first obtained. The first general law authorizing the organization of cemetery companies was St. 1841, ch. 114, under which any ten or more persons might organize as a corporation for the purpose of establishing a cemetery with power to take and

hold real and personal estate, which should be applied exclusively to purposes connected with and appropriate to the objects of such organization, and with power to lay out lots, and to grant exclusive rights of burial. The cemeteries owned by towns and cities and parishes were called and considered to be public cemeteries, because they were provided and maintained primarily at the expense of the public. In early times the parishes were virtually, if not strictly, public corporations. The rights of individuals who were not owners of tombs or lots, or burial rights therein, must have been subject to such rules and regulations as were established in particular places. An ancient burying ground, where persons of different families were buried, was easily inferred to be a public burying ground. Com. v. Viall, 2 Allen, 512; Com. v. Wellington, 7 Allen, 299. But the use of the word "public" by no means implied that exclusive rights to tombs, lots, and burials did not exist therein by assignment or purchase. By St. 1848, ch. 79, relating to a "public cemetery " in the city of Roxbury, express authority was given to the city council to grant exclusive rights of burial, the proceeds to be paid into the city treasury, and kept separate, and devoted to cemetery purposes. By St. 1855, ch. 44, and St. 1854, ch. 390, the cities of Cambridge and Worcester, respectively, were authorized to manage cemeteries, with a right to sell lots, the proceeds to go in each instance into the city treasury. The use of the term "public burial places," as applied to burial places owned by cities or towns, in which lots are sold to individuals, still continues. Pub. St. ch. 82, § 17. An example showing that towns were accustomed to sell burial lots. to individuals is found in Fay v. Milford, 124 Mass. 79.

Such being the laws and usages of the commonwealth before the time when the city of Boston made its first purchase of the Mt. Hope Cemetery, the city, by St. 1849, ch. 150, was "authorized to purchase and hold land for a public cemetery in any town in this commonwealth, and to make and establish all suitable rules, orders and regulations for the interment of the dead therein, to the same extent that the city of Boston is now authorized to make such rules, orders and regulations for the interment of the dead within the limits of the said city." Before any purchase under this statute was made, a general statute was passed, which included Boston (St. 1855, c. 257), providing

that "each city and town in the commonwealth shall provide one or more suitable places for a burial ground, within which the bodies of persons dying within their respective limits may be interred," and forbidding the use, for the burial of the dead, of any land in any city or town other than that already used or appropriated for that purpose, without permission. It also was, and long had been, the duty of the overseers of the poor of each town to bury paupers and indigent strangers dying therein. St. 1793, c. 59, §§ 9, 13; Rev. St. c. 46, §§ 13, 16. See, also, for later statutes on the same subject, Gen. St. c. 70, §§ 12, 15; Pub. St. c. 84, §§ 14, 17, enlarging their duties. Being under these positive duties, and having authority, under St. 1859, c. 150, to go outside the city limits for a burial ground, the city of Boston purchased the largest portion of the land of the Mt. Hope Ceme tery in West Roxbury in 1857, and has since added to the same at various times, and has received large sums from the sale of lots or burial rights, and has expended large sums in the care and management thereof, and about 40 acres still remain unsold. There is no suggestion in argument that in any of these particulars it has acted beyond its powers.

may be

1885), c.

We are not aware that the sale of burial rights in this cemetery has ever been limited to inhabitants of Boston. No such limitation is expressed in the ordinance, but sales made to any person or persons. Rev. Grd. Coston (Ed. 47, § 4. By St. 1877, c. 69, § 7 (re-enacted in Pub. St. c. 82, § 15), towns may sell exclusive burial rights to any persons, whether residents of the town, or otherwise, in their cemeteries; and this right extend to cities. Pub. St. c. 3, § 3, cl. 23. There can be no doubt that the city held this cemetery, not only for the burial of poor persons, but with the right to make sales of burial rights to any persons who might wish to purchase them, whether residents or non-residents. With these duties, and also with these rights and privileges, the city has acquired and improved this property. It is not as if the land had been procured and used exclusively as a place for the free burial of the poor, or of inhabitants of Boston. In addition to these purposes, the city has been enabled to provide a wellordered cemetery, with lots open to purchase, under carefully prepared rules and regulations, and thus to afford to its inhabi