CHAPTER 83

An Act to amend and reenact § 57-89 of the Code of Virginia, relating
to proceedings for removal of the remains of certain dead bodies from
graveyards under certain conditions; sale of land so vacated.

[H 425]
Approved February 28, 1968

Be it enacted by the General Assembly of Virginia:
an That § 57-39 of the Code of Virginia be amended and reenacted as
ollows:

§ 57-39. Proceedings for removal of remains and sale of land
vacated.—When the owners of a graveyard, or the trustees of a grave-
yard left in trust, by reason of the infancy or the disability of any of
them or by reason of their being numerous or partly unknown, or of the
residence of any of them being unknown, cannot or cannot conveniently
unite in making disposition of the same, any one or more of such owners
or trustees, or, in any event, any county, city or town of this State, if a
private graveyard or pauper’s graveyard (potter’s field), which has been
dedicated for such use either by written instrument, or by use by the
public for such purpose, be within * the boundaries thereof and the
private graveyards be not connected with any church or church property
and said graveyards be in a condition of neglect or disuse, or * in the
case of a pauper’s graveyard is in a condition of neglect, or disuse, or 18
located in a location which is inappropriate for its continued use as a
burial ground, may file a bill in equity in the circuit court of the county
or in the circuit or corporation court of the corporation wherein the
graveyard is located for the purpose of having the remains interred
in such graveyard removed to some more suitable repository, and the land
thus vacated sold and the costs of removal and interment and the costs
of suit including reasonable attorney’s fees paid out of the proceeds of
the sale. To such bill all owners of the graveyard or any person having a
right therein, and in the case of a pauper’s graveyard the dedicator
thereof, his heirs or successors in interest, if known, and if not known,
such unknown parties shall be made defendants by the name of “person
or persons unknown who may be the owners, heirs, or successors in
interest of the unknown dedicator 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 interests of all parties,
so far as known, and the reasons why relief is sought and that it is prac-
ticable. And upon the case being properly matured for hearing, and proofs
being adduced of the propriety of the removal, the court shall have power
to have 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 costs of removal and re-interment, including the costs of the new
place of interment, and of putting it in all respects in suitable condition
and erecting upon it suitable memorials and the costs of the suit paid out
of the proceeds of the sale.

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

In determining the question of removal or sale the court shall con-
sider as well the wishes of the parties concerned so far as they are
brought to its knowledge as the proofs, and so considering shall exercise
a sound discretion in granting or refusing the relief prayed for, except
that in case the bill be filed by a city, town or county, the court shall be
guided by considerations of public welfare.

The court may distribute any surplus of the proceeds of sale accord-
ing to their rights among the owners of the ground sold or the parties
entitled thereto, and in the case of the sale of a pauper’s graveyard
wherein the original owner, his heirs and successors in interest are
unknown, or there has been a dedication of said land for pauper’s grave-
yard, the court, after due consideration, upon application of the county,
city or town may permit the proceeds of the sale to be utilized for other
public uses of a charitable nature including the purchase of land for
parks, public offices and other municipal uses including the construction
of buildings thereon.

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