AGO 1989-052.

• Case Date: April 25, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-052. April 25, 1989ATTORNEY GENERAL OPINION NO. 89-52The Honorable Ginger Barr State Representative Fifty-First District State Capitol Room 115-S Topeka, Kansas Re: Corporations--Cemetery Corporations--Cemetery Lots; Disposition Public Health--Regulation of Embalmers and Funeral Directors; Funeral Establishments; Funeral Directors--Funeral Establishment Defined Synopsis: In our opinion, based on the facts presented, the operation of a chapel at Roselawn Memorial Park Cemetery in Salina is not contrary to the judgment affirmed in Connolly v. Frobenius, 2 Kan.App.2d 18 (1978). Cited herein: K.S.A. 1988 Supp. 65-1713a; U.S. Const., First Amend. * * * Dear Representative Barr: You request our opinion as to whether a chapel may be maintained on dedicated cemetery grounds. Your question relates to the injunction which was granted in Connolly v. Frobenius, 2 Kan.App.2d 18 (1978). In the Connolly case, the owners of cemetery lots sought an injunction restraining defendants (the cemetery corporation and its president) from constructing and operating a mortuary (and other commercial development) at Roselawn Memorial Park Cemetery in Salina. The real estate in question had been dedicated for "purposes of Sepulture," and the court restated the "general rule" that property dedicated for a particular purpose cannot be used for any other purpose. 2 Kan.App.2d at 30. After noting that courts in other states had expressed conflicting views as to whether a mortuary is a use which may properly be made of land dedicated for burial purposes, Kan.App.2d at 29, and stating that, in matters of dedication, all ambiguities must be resolved against the dedicator and in favor of the public, the court stated as follows:

"Defendants argue that the dedication was for purposes of sepulture, by definition synonymous with burial, which has been defined as 'the act or ceremony of burial' and, by applying these definitions, a mortuary for the conduct of funeral services is clearly within the purposes of 'sepulture.'

"Surely no one will argue with the fact that the services of a licensed mortician in Kansas are intimately associated with the act of burial of the dead. By the same token, it is doubtful that anyone will argue with the fact that services ordinarily provided by a mortuary in Kansas are competitive commercial enterprises, with aims and goals not solely for the enjoyment and use of the public. K.S.A. 65-1713 et seq. Where will the line be drawn? The general rules set forth on the deeds to the cemetery lots and to

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