Research and Analysis
AN ABBREVIATED OVERVIEW
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.
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.
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).
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.
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.
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.
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.
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.