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Published online by Cambridge University Press: 20 October 2008
A distressing example of double conveyancing came to light in Reed v Madon. A family had purchased exclusive rights of burial in a private burial ground, but one of the plots was resold, and a burial under this second title occurred before the original grantees had time to object. On the facts, the loss of the exclusive burial right could be effectively compensated in damages. This removed the need for Morritt J. to rule on some of the interesting points of law raised by exclusive burial rights. There was no authority concerned solely with a private burial ground. It was necessary therefore to argue by analogy from corresponding rights granted in other burial places, especially churchyards. It is now proposed to explore these issues.
1. [1989] 2 All E.R. 431.
2. Under ss. 40–48 Cemetery Clauses Act 1847 discussed below.
3. Particularly damages for distress: see at p.442b. Most of the damages fell on the cemetery company, which was basically at fault, Mr Madon having issued a third party notice: p.442e-h.
4. Repeated reference will be made to Davies, M.R. Russell, The Law of Burial, Cremation and Exhumation (5th ed. 1982)Google Scholar; Newson, G. H. Faculty Jurisdiction of the Church of England (1988)Google Scholar; Phillimore's, The Ecclesiastical Law of the Church of England (2nd ed. 1895)Google Scholar; and Polson, C.J. & Marshall, T.K., The Disposal of the Dead (3rd ed. 1975).Google Scholar
5. Hoskins-Abrahall v Paignton U.D.C. [1929] 1 Ch. 375, 386 Greer L.J.
6. 14 Halsbury's, Laws of England (4th ed.) at pp. 581–582.Google Scholar
7. Harris v Drewe (1831) 2 B. & Ad. 164, 164; 109 E.R. 1104, 1104; See per Holroyd J. in Bryan v Whistler (1828) 8 B. & C. 288, 294; 108 E.R. 1050, 1052–3 (burial and pew rights equated).
8. [1929] 1 Ch. 375.
9. Ashby v Harris (1868) L.R. 3 C.P. 523 (right to plant, but nothing offensive or unsightly) Bovill C.J. drawing the analogy of a pew (at p.528).
10. (1888) 21 Q.B.D. 323.
11. Re St. Martin le Grand, York [1989] 2 All E.R. 711, 731–2 per Thomas Coningsby Q.C. Ch.
12. Hinde v Chorlton (1866) L.R. 2 C.P. 104 (pews).
13. Consider the right created under the Consecration of Churchyards Act 1867, S.9 1868; ibid s.1 whereby the donor of the site of a churchyard may reserve exclusive burial rights to the extent of 1/6th.
14. This is supported by decisions that case was the appropriate action for disturbing a burial right in a churchyard. Trespass was available for a direct injury to the land of the plaintiff. Case was appropriate for the protection of rights akin to easements. Comyn's Digest (1792) title Cemetery (B) Burial vol. 2 p.179 says that if a right of burial be disturbed he may have an action on the case; see also Holyroyd J. in Bryan v Whistler (1828) 8 B. & C. 288, 294, 108 E.R. 1050, 1052.
15. Hinde v Chorlton (1866) L.R. 2 C.P. 104, 116; Brumfitt v Roberts (1870) L.R. 5 C.P. 224 (an even stronger case where there had been a confirmatory Act in emphatic terms); Greenway v Hockin (1870) L.R. 5 C.P. 235; Re St. Mary's, Banbury [1986] Fam. 24, 32G–36E.
16. Winstanley v North Manchester Overseers [1910] A.C. 7.
17. Ryde, on Rating (13th ed.) ch. 29 pp. 588–94Google Scholar; Russell Davies op. cit. pp. 93–95.
18. (1840) 12 Ad. & EL. 824, 113 E.R. 1026.
19. 2 & 3 W. 4 c. cx. s.43. See also R. v Abney Park Cemetery Co. (1873) L.R. 8 O.B. 515 (conveyance of plots by release).
20. In a private chapel or aisle a vault might be held in fee by the owner of the chapel or aisle: St Botolph without Aldgate, Vicar and Churchwarden v Parishioners [1892] P. 161, 167 Con. Ct. But a purported conveyance of a portion of the chancel inter alia for the provision of sepulchres was void: Clifford v Wicks (1818) 1 B. & Ald. 498; 106 E.R. 183 when not attached as an easement to an ancient messuage.
21. The right could be removed by Act of Parliament, but not by faculty: Crisp v Martin (1876) 2 P.D. 15, 24 per Lord Penzance.
22. 10 Halsbury's, Laws of England (4th ed.) at 524, para 1118. 524, para 1118 note 8Google Scholar; Harvey v Percivall (1606) cited Dawney v Dee (1620) Cro. Jac. 605, 606; 79 E.R. 517, 518.
23. Prohibited in relation to urban churches and those constructed after 1848: Public Health Act 1848 s.83; Local Government Act 1972, s.214(7), sch. 26 para. 17. Burial within a church may still be possible in an old rural church. In many cases churches and churchyards have been closed by Order in Council: Halsbury op. cit. para 1077. The Secretary of State had power to order disinterment of remains interred in a vault if injurious to health: Burial Act 1857 s.23; see Foster v Dodd (1866) L.R. 1 Q.B. 475, (1867) L.R. 3 Q.B. 67.
24. On pews see: Rogers v Brook (1783) 1 Term Rep. 431n; 99 E.R. 1179n; Mainwaring v Giles (1822) 5 B. & Ald. 356; 106 E.R. 1221; Lousley v Hayward (1827) 1 Y. & J. 583; 148 E.R. 804.
25. Frances v Ley (1614) Cro. Jac. 366; 366, 79 E.R. 314, 314. Note the equation of the rights to the pew and the vault.
26. Harris v Drewe (1831) 2 B. & Ad. 164; 109 E.R. 1104.
27. The discussion concerns mainly English churchyards. The Welsh church was disestablished, but principles of ecclesiastical law that were enforced in common law courts may still apply there: A.T. Denning (1944) 60 L.Q.R. 235, 240.
28. Russell Davies op. cit. pp.49–60; G. H. Newsom op. cit. pp. 143–145 Phillimore op. cit. p. 650; Polson & Marshall op. cit. ch. XIV; Winstanley v North Manchester Overseers [1910] A.C. 7, 15.
29. 14 Halsbury's, Laws of England (4th ed.) at 1079, 1081Google Scholar; Phillimore op. cit. pp. 1405–1415. The fee was suspended and the freehold estate passed to successive incumbents as a corporation sole. For new parishes see s.16 New Parishes Measure 1943.
30. Winstanley v North Manchester Overseers [1910] A.C. 7, 14 per Lord Atkinson; Greenslade v Darby (1868) L.R. 3 Q.B. 421.
31. Ecclesiastical Jurisdiction Measure 1963. ss.2, 6; 14 Halsbury's, Laws of England (4th ed.) at 1075Google Scholar; De Romana v Roberts [1906] P. 332. The Bishop personally should not act. Re St Mary's, Barnes [1982] 1 W.L.R. 531. There is an appeal from the Ordinary to the Court of Arches (s.7 of the 1963 Measure) and so on to the Privy Council (s.8). “Peculiars” are exempt from diocesan control; examples are Westminster Abbey, the royal chapels and Stamford. See generally Newsom op. cit. ch. 2.
32. Winstanley v Manchester Overseers [1910] A.C. 7, 15. Strangers should seek the permission of the incumbent Neville v Bridger (1874) 30 L.T. 690 and a faculty De Romana v Roberts [1906] P. 332. For closure see below “Termination of Burial Rights.”
33. Winstanley v North Manchester Overseers [1910] A.C. 7, 17 per Lord Atkinson.
34. Phillimore op cit. p. 654.
35. Commonly parts of the churchyard were not consecrated. Those not entitled to a Christian burial, formerly including suicides, could be interred there. The faculty jurisdiction of the ecclesiastical courts extends to unconsecrated parts of the churchyard: Re St Mary Magdalene's Paddington [1980] Fam. 99.
36. Fryer v Johnson (1755) 2 Wils. K.B. 28; 95 E.R. 667 (custom to bury as near as possible to ancestors bad); Ex p. Blackmore (1830) 1 B & Ad. 122, 109 E.R. 732 (rector could not be compelled to bury body in particular vault, but was obliged to bury body somewhere); Preston Corporation v Pyke [1929] 2 Ch. 338.
37. Transferred from the churchwardens by the Parochial Church Councils (Powers) Measure 1956 s.4.
38. Russell Davies op. cit, pp. 52–53; Polson & Marshall op. cit. pp. 213–17; G. H. Newsom op. cit. pp. 163–165; 14 Halsbury's, Laws of England (4th ed.) paras 1315–1317 pp. 732–736.Google Scholar
39. (1794) 1 Hagg. Cons. 205; 161 E.R. 526.
40. De Romana v Roberts [1906] P. 332; Rosher v Vicar of Northfleet (1825) 3 Add. 14; 162 E.R. 386.
41. (1828) 8 B. & C. 288, 108 E.R. 1050.
42. At p. 295, 1053. The lack of formalilities provide a better ground for the decision (see infra “Formalities”).
43. Re Hendon Churchyard (1910) 27 T.L.R. 1, explained in this way in Re St Nicholas's, Baddesley Ensor [1983] Fam. 1, 5G.
44. The Courts should refuse a faculty if the grant is against the interests of parishioners: Rich v Bushnell (1827) 4 Hag, Eccl. 164; 162 E.R. 1407.
45. Re St Luke's Holbeach Hurn, Watson v Howard Lincoln Consistory Ct. [1990] 2 All E.R. 749, 758 Judge Goodman Ch.
46. In Re St Martin le Grand, York [1989] 2 All E. R. 711 it was held (at pp. 731–2) that a prescriptive right of way arising by lost modern faculty could only create a perpetual licence and not an easement. The reasoning does not appear to exclude the creation of an easement for non-secular purposes, such as burial.
47. (1828) 8 B. & C. 288; 108 E.R. 1050.
48. Phillipps v Halliday [1891] A.C. 228; Griffith v Matthews (1793) 5 Term Rep; 296, 101 E.R. 166; Rogers v Brooks (1783) 1 Term. Rep. 431n; 99 E.R. 1179n. Re St Mary's, Banbury [1986] Fam. 24.
49. At p. 293, 1052.
50. Fuller v Lane (1825) 2 Add. 419; 162 E.R. 348; Byerley v Windus (1826) 5 B. & C. 1; 108 E.R. 1 (prohibition to stop the grant of a faculty to the extra-parochial members of Staples Inn (an old Inn of Chancery) for exclusive rights to seven pews in absence of a prescriptive title at common law). Brabin & Tradum's case (1618) Popham 140; 79 E.R. 1241; Phillimore op. cit. p. 695.
51. Irish cases decide that a right of burial does not create an easement, but an irrevocable licence in perpetuity: Reid v Belfast Corporation 44 I.L.T. 107; Smith v Hogg [1953–1954] Ir. Jur. Rep. 58. See Re St Martin le Grand, York [1989] 2 All E.R. 711, 731–2.
52. The Perivale Faculty, De Romana v Roberts [1906] P. 332; granting exclusive right of a vault to the grantee “her executors, administrators, and assigns”. Phillimore op. cit. p. 655 n.(b); Magnay v United Parishes of St Michael, Paternoster Royal and St Martin Vintry (1827) 1 Hagg. Ecc. 48; 162 E.R. 502 (grant to family while inhabitants).
53. [1990] 2 All E.R. 749, 754h. 27th December 1989, Lincoln Consist. Ct. Judge Michael Goodman Ch. contrasted a grant “to AB his heirs and family” in 2 Oughton's Ordo Judicorum (1738) 297, No. 323.Google Scholar
54. Kellett v All of St. John's Burscough Bridge (1916) 32 T.L.R. 571, 572 Dowdall Ch. Con. Ct.
55. Ibid.
56. Strictly an easement was not an incorporeal hereditament, though it has come to be seen as the exemplar of that category.
57. Re Hendon Churchyard (1910) 27 T.L.R. 1 Con. Ct. (Husband endorsed transfer to wife on back of receipt from parish clerk, acting for incumbent and churchwardens).
58. Re St Martin le Grand, York [1989] 2 All E. R. 711, 731–2 per Thomas Coningsby O.C. Ch.; Re St Peter's, Bushey Heath [1971] 1 W.L.R. 357Google Scholar, 360A per G. H. Newsom Q.C. Ch.; Newsom op. cit. pp. 168–172.
59. L. C. C. v Dundas [1904] P. 1 32 Sir Lewis Dibdin, Dean of Arches.
60. Russell Davies op. cit. ch. 6; Polson & Marshall op. cit. ch. XV.
61. Assuming that burial was not prevented by a restrictive covenant. Consider for example private mausoleums such as that at Castle Howard, Yorkshire. See 10 Halsbury's Laws of England (4th ed.) P. 504 para. 1066. (see esp. n.3. on whether there was any requirement that interments should take place at least 100 yards away from dwellings). Planning permission would now be required: query if consent would be needed for a single tomb on private land. The Independent reported on 5th January 1990 that planning permission had been granted for a private cemetery in a 19 acre estate at Tideswell, Derbyshire.
62. Re Manser A. G. v Lucas [1905] 1 Ch. 68 (Quaker ground); Sheridan, & Keeton, , The Modem Law of Charities (3rd ed. pp. 64–65Google Scholar by Spencer G. Maurice and David B. Parker); Tudor on Charities (7th ed.) Russell Davies op. cit. ch.8. An early example in the City of London was Bunhill Fields, founded around 1665: Meller, Hugh, London Cemeteries (1981) p.88ff.Google Scholar
63. 2 & 3 W. 4 c. cx. See R. v Inhabitants of St Mary Abbot's, Kensington (1840) 12 Ad. & El. 824; 113 E.R. 1026.
64. Part was usually consecrated and part unconsecrated. Some aspects of ecclesiastical jurisdiction (especially over exhumation) applied to the consecrated part.
65. [1989] 2 All E.R. 431.
66. 15 & 16 Vict. c. cxlix.
67. Preston Corporation v Pyke [1929] 2 Ch. 338Google Scholar; Matthews v Jeffrey (1880) 6 Q.B.D. 290; McGough v Lancaster Burial Board (1888) 21 Q.B.D. 323, 327 Bowen L.J. (“[T]he general purpose of the [Burial] Act [1852] is to provide cemeteries in substitution for parish churchyards.”) Commonwealth authorities are naturally more likely to insist upon a difference: Hubbs v Black (Alberta Supreme Court) (1918) 46 D.L.R. 583, 589 Riddell J.
68. The analogy was denied by Sankey L.J. in Hoskins-Abrahall v Paignton U.D.C. [1929] 1 Ch. 375, 387; in Reed v Madon [1989] 2 All E.R. 431, 437c the issue was said to be simply construction of the Cemetery Clauses Act 1847.
69. At p.436h citing Lord Simonds in Cutler v Wandsworth Stadium Ltd. [1949] A.C. 398, 407 as authority for permitting a right of civil action.
70. Spooner v Brewster (1825) 3 Bing. 136; 130 E.R. 465 decided that an action in trespass was permitted. This suggests that a property can pass in the materials of the gravestone sufficient to found an action in trespass. See Phillimore op. cit. p. 694.
71. [1989] 2 All E.R. 431, 437a.
72. At pp.436j–437a.
73. (1880)6 Q.B.D. 290.
74. (1880) 6 Q.B.D. 290, 293. Crisp v Martin (1876) 2 P.D. 15 (the male representative was in fact one of the petitioners for alterations in the church; Edward Crisp who objected was the grandson of the grantee); St Nicholas's, Baddesley Ensor [1983] Fam. 1 (petitioner who was not the personal representative of his grandmother not able to pursue claim that a grave space had been reserved for her). The abolition of the heir reduces the force of this reasoning: the right would now vest equally in the next-of-kin.
75. Matthews v Jeffrey (1880) 6 Q.B.D. 290; Strathcona Cemetery Co. v Taylor [1924] 3 D.L.R. 625, 629 (goes to next of kin in Canada, though in England to heir.)
76. Re Nottingham General Cemetery Co. [1955] Ch. 683Google Scholar (private Act specified right of personal inheritance); similar is the Highgate Cemetery Act 6 & Will 4 c. cxxvi referred to in London Cemetery Co. v Cundey [1953] 2 All E.R. 257. The Cemetery Clauses Act 1847 s.46 also specifies personal estate; the right may be assigned (see form of deed in s.45) in lifetime or bequeathed by his will.
77. (1828) 8 B. & C. 288; 108 E.R. 1050.
78. (1918) 46 D.L.R. 583.
79. At p. 587 citing Moreland v Richardson (1857) 24 Beav. 33; 53 E.R. 269 and Ashby v Harris (1868) L.R. 3 C.P. 523.
80. (1924) 3 D.L.R. 625, 628.
81. [1989] 2 All E.R. 431.
82. Most of the Burial Acts applied only to England (then deemed to include Wales). In Scotland see Burial Grounds (Scotland) Act 1855 esp. s.18 re exclusive burial rights.
83. Hoskins-Abrahall v Paignton U.D.C. [1929] 1 Ch. 375 provides an example of an exclusive grant under the Public Health (Interments) Act 1879 incorporating Cemeteries Clauses Act 1847.
84. Arnold-Baker, Charles, New Law and Practice of Parish Administration (1968) p.282.Google Scholar
85. Metropolitan Interments Act 1850 s. 15, s.30 rep. 1852; Burial Act 1852 s.33 (London); Burial Act 1853 s.7 (extends 1852 Act out of London).
86. s.214 (applying to England & Wales). Existing powers ceased to be exercisable in 1st April 1974. Russell Davies op. cit. pp.77–88; Polson & Marshall op. cit. ch. XV.
87. Local Authorities' Cemeteries Order 1977 S.I. 1977 No. 204 (replacing 1974 S.I. 1974 No. 628) Art 10 sch 2 parts II-III; see infra “Formalities”.
88. (1828) 8 B. & C. 288; 108 E.R. 1050.
89. At p. 293, 1052; supported by Holroyd J.; Littledale J. thought that there was no interest in land.
90. (1857) 24 Beav. 33; 53 E.R. 269; see also the earlier proceedings at (1856) 22 Beav. 596, 601; 52 E.R. 1238, 1240.
91. (1882) 21 Ch. D. 9.
92. Hubbs v Black (1918) 46 D.L.R. 583.
93. Supra.
94. Nevertheless it is treated as a “conveyance or transfer on sale” within s.54 Stamp Act 1891, so a certificate of value should be included. No good purpose seems to be performed by treating the grant as stampable.
95. Local Authorities' Cemeteries Order 1977 No. 204 art. 10, Sch. 2 pt. II para. 1(1). Query therefore if it is stampable. An assignment must be by deed or by will: para. 3.
96. [1989] 2 All E.R. 431, 437b; this is because of the concessions in the actions noted at p.435e-f.
97. Presumably to avoid opening the argument that the sale of the cemetery was void under Cemetery Clauses Act 1847 s.9: see at p.442j. See also Re St Mary Abbot's, Kensington (1840) 12Google Scholar Ad. & El. 824, 831, 113 E.R. 1026, 1029 per Coleridge J.
98. As in Re St. Luke's, Holbeach Hurn [1990] 2 All E.R. 749.Google Scholar
99. One of the reasons that the District Auditor has cast doubt on the legality of the sale of Westminster Cemeteries is that the sales apparently breached agreements granting rights of burial: Independent 17th February 1990.
100. (1857) 24 Beav. 33; 53 E.R. 269. The burials had been begun when the land was leasehold! In Foster v Dodd (1867) L.R. 3 Q.B. 67 the burial ground was ultimately held from year to year.
101. The limited protection available at common law was shown by Foster v Dodd (1867) L.R. 3 Q.B. 67, 77 Byles J.
102. (1880) 14 Cox C.C. 522.
103. p. 528.
104. Ibid.
105. Re Nottingham General Cemetery Co. [1955] Ch. 683, 691.Google Scholar
106. Megarry, & Wade, , The Law of Real Property (5th ed.) p.695.Google Scholar
107. A burial might be a latent defect in title: Dibley v Furter (1951) 4 S.A.L.R. 73.
108. Ency. of Forms & Precs. (5th ed.) p.236Google Scholar Form 29 n.1. If title to cemetery is registered, notice of the grant may be registrable on the title. Reference to the registered title number should appear in deed of grant and a plan showing the grave space must accompany the application. If a large number of grants are being made a general form of protective entry may be possible. The note applies to local authority cemeteries, but the principle seems general.
109. Presumably it could not be protected by Land Registration Act. 1925 s.70(1)(g) when as in this case the plot had been reserved but not filled; a right after a burial might be the ultimate undiscoverable overriding interest. It might be protected under s.70(1) (a) if it is an easement.
110. [1953] 2 All E.R. 257.
111. Shiloh Spinners Ltd. v Harding [1973] A.C. 691.
112. Faculty Jurisdiction Measure 1964 s.8. It must be limited to a maximum of 100 years. The provision does not apply to burial grounds or cemeteries: s.8(2).
113. Local Authorities' Cemeteries Order 1977 S.I. 1977 No. 204 Art. 10 sch. 2 part II (grant) and part III (termination).
114. Cemetery Clauses Act 1847 s.40.
115. Rev. Barker, Thomas, Abney Park Cemetery: A Complete Descriptive Guide etc. (1869) p.20Google Scholar, cited by Meller, Hugh, London Cemeteries p.61 n.8.Google Scholar
116. Campbell v Mayor & Corporation of Liverpool (1870) L.R. 9 Eq. 579.
117. Ryde, on Rating (13th ed.) p.589Google Scholar. A number of cemetery companies went into liquidation; see e.g. Re the Nottingham General Cemetery Co. [1955] Ch. 683.Google Scholar
118. Until recently the growth of grass in a churchyard could be seen as a source of profit: Greenslade v Darby (1868) L.R. 3 Q.B. 421, 429 Blackburn J., but now it can only be a burden.
119. Under Open Spaces Act 1906 s.6. For a faculty granted to turn a churchyard into an open space, with an order that a family tomb was not to be interfered with see Re Camden Town Burial Ground (1889) 5 T.L.R. 311Google Scholar. Some old cemeteries are maintained by voluntary groups.
120. Prescriptive rights are superior to the jurisdiction of the Ordinary supra “Prescriptive Right of Burial in a Church or Churchyard“. A faculty cannot end a pew right granted by statute: Re St. Mary's Banbury [1986] Fam. 24Google Scholar, 37C-E per Judge Boydell Q.C. Ch.
121. St Botolph without Aldgate, Vicar and Churchwarden v Parishioners [1892] P. 161, 168.
122. [1893] P. 233, 240 Con. Ct.
123. [1904] P. 1, 30–31 per Sir Lewis Dibdin, Dean of Arches, cited with approval by Judge Michael Goodman Ch. in Re St. Luke's Holbeach Hurn [1990] 2 All E.R. 749; 757 cd.Google Scholar
124. Vestry of St Pancras v Vicar and Churchwarden of Parish of St Martin in the Fields 6 Jur N.S. 540 (faculty for 20 reinterments, in fact 400–500 bodies disturbed).
125. (1888) 13 App. Cas. 446.
126. Metropolitan Interments Act 1850 s. 13 (rep. 1852); Burial Act 1852 ss.2–5 (London–existing family vaults could be used if Secretary of State granted licence permitting burial); Burial Act 1853 s.1. (extends 1852 Act out of London).
127. St. Michael Bassishaw, Rector & Churchwardens v Parishioners (Braikenridge intervening) [1893] P. 233, 240–245.
128. Moreland v Richardson (1856) 22 Beav. 596, 52 E.R. 1238; Re St. Mary's, Barnes [1892] 1 W.L.R. 456Google Scholar Con. Ct. (order prevented only first time burials).
129. Re Sargent (1890) 15Google Scholar P.D. 168 (burials were permitted in reserved grave spaces allotted to members of the families of parishioners–enabled a valid grant to be made to a living non-parishioner who was a member of the family of a parishioner).
130. Lee v Hawtrey [1898] P. 63; St Michael Bassisshaw [1893] P. 233.Google Scholar
131. St Helen's, Bishopsgate, with St Mary Outwich, Rector and Churchwardens v Parishioners (M'Dougal intervening) [1892] P. 259 Con. Ct.
132. Originally meaning only burial grounds closed under Order in Council, but extended by Open Spaces Act 1887, s.4 to cover any disused burial ground.
133. Re St Ann's, Kew [1977] Fam. 12 Con. Ct.Google Scholar
134. 14 Halsbury's, Laws of England (4th ed.) p.575Google Scholar; Newsom op. cit. pp. 153–161.
135. s.30(4).
136. Pastoral Measure 1983 s.65 and Sch 6; Halsbury op. cit. at P. 609.
137. Re West Camel Church [1979] Fam. 79.Google Scholar
138. As should presumably be the case if human remains are left.
139. Under Disused Burial Grounds (Amendment) Act 1981 s.1(1); human remains, gravestones etc. must be disposed of in accordance with s.2 and Sch. S.4(1) discharges the land from rights of burial, but compensation must be paid under s.4(3).
140. Town & Country Planning Act 1971 s.128(6); Town & Country Planning (Churches, Places of Religious Worship & Burial Grounds) Regulations 1950 art. 7 (notice on personal representative if remains interred within 25 years). See Polson & Marshall op. cit. pp.255–60.
141. [1989] 2 All E.R. 431.
142. See Polson & Marshall ch. XIX. For forms see Ency. Forms & Precs. (5th ed.) vol. 6 Burial & Cremation Form 45 (faculty) and form 46 (Home Office licence). Neither is required for exhumation at the behest of a coroner: Coroners Act 1980, s.4.
143. Russell Davies op. cit. pp. 160–62.
144. Petersdorff's Abridgment vol. 4 (1826) p.776 Burial (6).
145. Re Atkins [1989] 1 All E.R. 14, 16e. Con. Ct.Google Scholar
146. Re Atkins [1989] 1 A11 E.R. 14Google Scholar, 16f-h citing Revised Canons Ecclesiastical, Canon B38 (Of the burial of the dead). But query whether this should be a principle of general application since there are no restrictions on where ashes are kept.
147. It was everyday practice in the Church courts to order a coffin to be set aside or moved to another place within a churchyard, or moved to another consecrated ground. Druce v Young [1899]. P. 84, 108.
148. Re Sarah Pope (1851) 15 Jur. 614.Google Scholar
149. Re Atkins [1989]. 1 All E.R. 14, 20c–21f.Google Scholar
150. (1867) L.R. 2 A. & E. 30.
151. Re Talbot [1901]. P. 1. Con. Ct.Google Scholar
152. Re Matheson (decd.) [1958] 1 W.L.R. 246Google Scholar; the jurisdiction had been doubted in Re Dixon [1892], P. 386.Google Scholar
153. R. v Tristram [1898] 2 Q.B. 371, 374 Willes J.
154. (1851) 15 Jur. 614. It seems from Druce v Young [1899] P. 84, 107 that the licence of the Home Secretary would not be needed if a coffin lid was raised for identification purposes without removal of the body: doubted by Russell Davies op. cit. p. 164.
155. On road widening contrast Norfolk County Council v Knights [1958] 1 All E.R. 394n (refused on facts) and Morley Borough Council v St Mary the Virgin Woodkirk [1969] 3 All E.R. 952 (faculty granted – 191 graves to be disturbed), St Botolph without Aldgate, Vicar & Churchwarden v Parishioners [1892] P. 161.
156. Re Matheson (decd.) [1958] 1 W.L.R. 246Google Scholar, 248; Re Atkins [1989] 1 All E.R. 14Google Scholar, 19e. The speed of the application is a most material factor – a prompt application must be stronger.
157. Re Atkins [1989] 1 All E.R. 14, 19j.Google Scholar
158. [1893] P. 233, 240 Con. Ct.
159. [1990] 2 All E.R. 749 Lincoln Consist. Ct. Judge Michael Goodman Ch.
160. [1989] 2 All E.R. 431.
161. Citing the headnote in L.C.C. v Dundas [1904] P.D.A. 1.
162. Newsom op. cit. ch. 7.
163. See for example Re Atkins [1989] 1Google Scholar All E.R. 14 in which the consent of the rector of the churchyard in which burial had occurred and of the cemetery in which reinterment was proposed had been obtained.
164. Who would normally be the freeholder, but see “Burial in Churchyards” supra.
165. (1899) 80 L.T. 414, 416. They cannot be ordered to exhume or to consent to exhumation.
166. The abolition of the criminal jurisdiction over the laity in 1963 suggests that the faculty jurisdiction may not provide sufficient protection.
167. (1857) Dears. & Bell 160; 169 E.R. 959; 7 Cox C.C. 214. See also Moreland v Richardson (1856) 22 Beav. 596; 52 E.R. 1238 (right to injunction to protect sites in which exclusive burial rights given, but no protection for remainder of burial ground).
168. There was no property in a corpse: As Phillimore (op. cit. at p.667) says “It was at one time a vulgar error that a body might be seized by creditors.” Burial grounds were said to be under the protection of the public in Foster v Dodd (1867) L.R. 3 Q.B. 67, 177; Phillimore op. cit. p.689.
169. And fined a nominal 1s., the court accepting that his motives were pious.
170. (1857) Dears. & Bell 160, 163; 169 E.R. 959, 960. See also R. v Lynn (1788) 2 T.R. 733; 100 E.R. 394; R. v Price (1884) 12 Q.B.D. 247.
171. The Act applied to England including Wales. In Wales there appears to be no faculty jurisdiction and so a licence is always needed: Ency. of Forms & Precs. (5th ed.) vol. 6 para. 436 p. 210n. 3 contra Re Talbot [1901] P. 1, 6.Google Scholar
172. See C.J. Polson and T.K. Marshall op. cit. ch. XIX esp. pp. 300–303. In practice the Home Secretary acts. The D.G. Rossetti case is described at pp. 297–8. A fee is prescribed by the Human Remains Removal Licence (Prescribed Fee) Order 1982 No. 364; see also 1981 No. 1739. 14 Halsbury's, Laws of England (4th ed.) at 1197.Google Scholar
173. As in R. v Jacobson (1880) 14 Cox C.C. 522.
174. In the only direct authority, R. v Tristram (1899) 80 L.T. 414 the point was left open; the Home Secretary wrote to the Secretary-General of the General Synod of the Church of England on 18th March 1985 accepting the interpretation set out in the text.
175. At the trial their claim shifted to requiring removal of the infringing memorial erected to Mrs Madon and damages.
176. At p. 440g.
177. At p. 440c.
178. At p.440d–e. Quite different reasoning (discussed above) would apply for removals within or between consecrated grounds..
179. (1880) 43 L.T. 796 in preference to 6 Q.B.D. 290.
180. (1880) 43 L.T. 796, 798. It does not appear whether the land was or was not consecrated. If it was, a faculty might have been sufficient. There is no report of an argument on the need for the Home Secretary's licence. In Hubbs v Black (1918) 46 D.L.R. 583, 590 Riddell J. described the demand that corpse of defendants should be dug up and carried off the plot as “ghoulish”.
181. [1989] 2 All E.R. 431.
182. There is some evidence that exhumation will be ordered where two bodies have been confused so that the wrong body has been buried in a family grave: Ency. Forms and Precs. (5th ed.) vol 6 Burial & Cremation para. 436 p. 210n.4. The difficulty is that the Home Secretary's decision is administrative; Reed v Madon shows the need for a judicial discretion in disputed cases.
183. In Re Kerr [1894] P. 284, 286Google Scholar the Consistory Court of London approached the Home Secretary to ascertain whether there was any objection on health grounds to the interment of ashes in a church.
184. Garner, Simon (1986) 7 O.J.L.S. 60.Google Scholar
185. [1989] 2 All E.R. 431.
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