57-39 - Proceedings for removal of remains and sale of land vacated. - Virginia Statutes

§ 57-39. Proceedings for removal of remains and sale of land vacated.

When the owners of a graveyard, or the trustees of a graveyard left in trust,by reason of the infancy or the disability of any of them or by reason oftheir being numerous or partly unknown, or of the residence of any of thembeing unknown, cannot or cannot conveniently unite in making disposition ofthe same, any one or more of such owners or trustees, or, in any event, anycounty, city or town of this Commonwealth, if a private graveyard or pauper'sgraveyard (potter's field), which has been dedicated for such use either bywritten instrument, or by use by the public for such purpose, be within theboundaries thereof and the private graveyards be not connected with anychurch or church property and said graveyards be in a condition of neglect ordisuse, or in the case of a pauper's graveyard is in a condition of neglect,or disuse, or is located in a location which is inappropriate for itscontinued use as a burial ground, may file a bill in equity in the circuitcourt of the county or in the circuit or corporation court of the corporationwherein the graveyard is located for the purpose of having the remainsinterred in such graveyard removed to some more suitable repository, and theland thus vacated sold and the costs of removal and interment and the costsof suit including reasonable attorney's fees paid out of the proceeds of thesale. To such bill all owners of the graveyard or any person having a righttherein, and in the case of a pauper's graveyard the dedicator thereof, hisheirs or successors in interest, if known, and if not known, such unknownparties shall be made defendants by the name of "person or persons unknownwho may be the owners, heirs, or successors in interest of the unknowndedicator of the pauper's graveyard which is the subject of this suit,"other than the plaintiffs shall be duly made defendants.

The bill shall show the title of the land, the interest of all parties, sofar as known, and the reasons why relief is sought and that it ispracticable. And upon the case being properly matured for hearing, and proofsbeing adduced of the propriety of the removal, the court shall have power tohave the removal made and the remains properly deposited in another place,and to make sale of the grounds vacated by the removal and to have the costsof removal and reinterment, including the costs of the new place ofinterment, and of putting it in all respects in suitable condition anderecting upon it suitable memorials and the costs of the suit paid out of theproceeds of the sale.

Such removal and reinterment shall be done with due care and decency. But,unless the bill be filed by a city, town or county, the court shall not ordersuch removal and reinterment until due and sufficient guaranty be given itthat the proceeds of sale of the grounds proposed to be sold will besufficient to meet all costs that may be incurred unless some party to thecause or other person gives due security to make good any deficit.

In determining the question of removal or sale the court shall consider aswell the wishes of the parties concerned so far as they are brought to itsknowledge as the proofs, and so considering shall exercise a sound discretionin granting or, refusing the relief prayed for, except that in case the billbe filed by a city, town or county, the court shall be guided byconsiderations of public welfare.

The court may distribute any surplus of the proceeds of sale according totheir rights among the owners of the ground sold or the parties entitledthereto, and in the case of the sale of a pauper's graveyard wherein theoriginal owner, his heirs and successors in interest are unknown, or therehas been a dedication of said land for pauper's graveyard, the court, afterthe due consideration, upon application of the county, city or town maypermit the proceeds of the sale to be utilized for other public uses of acharitable nature including the purchase of land for parks, public officesand other municipal uses including the construction of buildings thereon.

No graveyard to which there is no right-of-way except over or through someperson's land shall be sold hereunder without the consent of such person.

(1946, p. 407; Michie Suppl. 1946, § 58a; 1968, c. 83.)