While the terms Minnesota Private Cemetery Minnesota Private Cemeteries are not defined by any Minnesota statute, the term Minnesota Public Cemeteries is defined by M.S., Section 306.87.

Minnesota Private Cemeteries - Minnesota Private Cemetery

Minnesota Private Cemetery;

Minnesota Private Cemeteries

And the field of Ephron which was in Machpelah, which was before Mamre,

the field, and the cave which was therein, and all the trees that were in the field, that were in all the borders round about,

were made sure Unto Abraham for a possession in the presence of the children of Heth,

before all that went in at the gate of his city.

Genesis 23, Verses 17-18. KJV

Minnesota Private Cemeteries

While the terms Minnesota Private Cemetery and Minnesota Private Cemeteries are not defined by any Minnesota statute, M.S., Section 306.87, defines the term Minnesota Public Cemeteries in the following manner:

Subdivision 1.  Applicability.

Unless the language or context clearly indicates that a different meaning is intended, the following definitions apply to this chapter.

Subd. 3.   Public cemeteries.

All cemeteries started or established as public cemeteries

and

all cemeteries hereafter started or established,

except cemeteries established by religious corporations,

are public cemeteries within the provisions of . . . chapter [306].

Minnesota Private Cemeteries

Therefore, according to the above – somewhat circular – definition of Minnesota public cemeteries, Minnesota private cemeteries are those established by religious corporations – which may be formed pursuant to M.S. Chapter 315, or to M.S. Chapter 317A.

In addition, it can reasonably be argued that Minnesota cemeteries established by individuals are not public cemeteries subject to the provisions of Minnesota Statutes, Chapter 306, but Minnesota private cemeteries subject to the provisions of Minnesota Statutes, Chapter 307 since:

. . . the language or context [of M.S., Section 306.87] clearly indicates that a different meaning is intended . . .

For a discussion of Minnesota religious corporations, see generally http://dahlelawchurches.com/minnesota-chapter-315-corporations/

Governing Statutes – Minnesota Chapter 307

Minnesota private cemeteries are primarily governed by Minnesota Statutes, Chapter 307 – a body of law containing only 14 sections – although a number of sections in Minnesota Statutes, Chapter 306 are also applicable to Minnesota private cemeteries.

Minnesota Chapter 315

Many Minnesota religious corporations are governed by Minnesota Statutes, Chapter 315 – a body of quasi-corporate law which loosely governs Minnesota religious corporations, religious societies, and to some extent, their cemeteries.

Minnesota Chapter 317A

Certain Minnesota religious corporations may be governed by Minnesota Statutes, Chapter 317A – a body of corporate law which has governed:

  • all Minnesota “non-profit corporations” since 1991,
  • including, but not limited to, many churches – and indirectly, their cemeteries.

Minnesota Chapter 306

Notwithstanding the general inapplicability of Minnesota Statutes, Chapter 306 to Minnesota private cemeteries, certain sections of Minnesota Statutes, Chapter 306 are specifically applicable by their terms to Minnesota private cemeteries.

M.S., Section 307.11 incorporates by reference the application of five separate statutes identified in Minnesota Statutes, Chapter 306.

M.S., Section 307.115 incorporates by reference the application of M.S., Section 306.155.

M.S., Section 306.29 – addressing the testamentary disposition of cemetery lots by the decedent’s Will, and certain testamentary trusts – appears to be applicable by implication to private cemeteries by making four references to private cemeteries.

See https://dahlelawcemeteries.com/death-transfers-minnesota-cemetery-lots/

Minnesota Private Cemeteries – Chapter 307

In 1917, the Minnesota Supreme Court identified that the predecessor body of law to Minnesota Statutes, Chapter 307, did not apply to religious corporations until 1903:

Prior to 1903, sections 3130 to 3135, G.S.1894, applied only to the case where

“any person desired to establish a cemetery upon any lands owned by him.”

By Laws 1903, c. 63, the powers and privileges granted by the named sections of the 1894 statutes were granted to religious corporations and the sections made to read substantially

  • as they appeared in the 1905 Revised Laws 2960 et seq., and
  • as they appear now in the 1913 General Statutes, § 6316 et seq.

It thus appears that until 1903 a religious corporation was not authorized by name to establish a cemetery under this statute.

 . . . the legislature has seen fit to enact

  • one set of laws for cemeteries owned and conducted by associations organized for that purpose, and
  • another set of laws for cemeteries owned and conducted by private persons or religious corporations.

                                 In re Front Street Sewer Assessment, 138 Minn. 67, 69, 163 N.W. 978, 979, 1917.

Establishment of a Minnesota Private Cemetery

M.S., Section 307.01 identifies the manner in which Minnesota private cemeteries may be formed, by providing in part as follows:

Any private person and any religious corporation

  • may establish a cemetery
  • on the person’s or corporation’s own land

in the following manner:

  • The land shall be surveyed and a plat thereof made.
  • A stone or other monument shall be established to mark one corner of such cemetery, and its location shall be designated on the plat.
  • The plat and the correctness thereof
  • shall be certified by the surveyor, whose certificate shall be endorsed thereon, and
  • with such endorsement shall be filed for record with the county recorder in the county where the cemetery is located, showing the area and location of the cemetery.

M.S., Section 307.01 presumes that a religious corporation establishing a Minnesota private cemetery has already been organized pursuant to some other body of law.

Establishment of a Minnesota Private Cemetery by an Individual

In 2001, the Minnesota Court of Appeals upheld an individual’s right to proceed with the filing of cemetery plats for Minnesota Private Cemeteries pursuant to M.S., Section 307.01:

Picha’s application met all conditions.

Picha’s request is for a private cemetery, which is a permitted conditional use.

There is no evidence that such use would

  • diminish the use or enjoyment of the surrounding property,
  • impair property in the immediate vicinity or
  • impede the normal and orderly development of the surrounding vacant property.

Picha

  • provided a permanent easement for maintenance and visitation access to the cemetery;
  • placed $10,000 into a trust fund to provide for perpetual maintenance; and
  • committed to compliance with Minn.Stat. § 307.01 relating to cemetery survey requirements.

Picha v. County of McLeod, 634 N.W.2d 739, 743 Minn.Ct. App. (2001).

Changes to a Minnesota Private Cemetery Plat

M.S., Section 307.01 identifies that:

  • once the original survey plat has been recorded with the county recorder in the county where the cemetery is located,
  • certain subsequent changes to the plat can be made:
  • in the internal records of the private cemetery – which need not be reflected in the public records,
  • by the placement of physical monuments on the ground,

by providing in part as follows:

Any person or association owning such private cemetery may subdivide or rearrange the same, from time to time, as may be necessary in the conduct of the business,

  • but no plat of such subdivision or rearrangement shall interfere with the rights and privileges of the several lot owners of such cemetery without their consent,
  • nor need same be filed in the office of the county recorder;

provided, that a plat of the same shall be kept for public inspection at such cemetery;

and, provided, further, that there shall be placed at the corner of each lot of such subdivision or rearrangement 

  • cement or other nondestructible markers three inches or more in diameter and eight inches or more in length,
  • one of such markers showing the number of the lot.

Effect of a Recorded Minnesota Private Cemetery Plat

M.S., Section 307.02 identifies the legal effect of recording a private cemetery plat, by providing in part as follows:

When such plat has been recorded, every donation or grant of lands therein

  • to the public,
  • to any religious corporation, or
  • to any individual,

shall be deemed a conveyance of such lands, subject to the conditions and restrictions, if any, contained therein.

Conveyance of Lots by a Minnesota Private Cemetery Corporation

M.S., Section 307.02 imposes a limitation on the real property interest which may be conveyed by a Minnesota private cemetery corporation in lots located in Minnesota Private Cemeteries, by providing in part as follows:

Every conveyance of such lots shall be expressly for burial purposes, . . .

M.S., Section 307.04 also identifies a limitation on the real property interest which may be conveyed by a religious corporation in lots located in Minnesota Private Cemeteries, by providing in part as follows:

Every religious corporation owning such cemetery may sell and convey lots therein for burial purposes only.

Minnesota Private Cemetery Common Areas to be Held in Trust

M.S., Section 307.02 identifies that the common areas in Minnesota private cemeteries shall be held in trust by the owner of the private cemetery, by providing in part as follows:

. . . the lands designated on the plat as streets, alleys, ways, commons, or other public uses

  • shall be held by the owner of the cemetery in trust
  • for the uses and purposes thereon indicated.

Presumably if an individual has established a Minnesota private cemetery on the person’s own land, trustees and successor trustees would have to be appointed to maintain and administer such common areas.

Execution of Deeds in a Minnesota Private Cemetery

M.S., Section 307.04 identifies the requirements for execution of a deed of conveyance with respect to private cemetery lots in a Minnesota private cemetery, by providing in part as follows:

Deeds thereof may be executed

  • by the treasurers of such corporations, or
  • by one or more of the trustees thereunto authorized by resolution duly adopted by its board of trustees.

 Minnesota Private Cemeteries – Permissible Grantees of Lots

Additional requirements with respect to the permissible grantees of any deeds of conveyance in Minnesota private cemeteries would be identified in the rules and regulations of the private cemetery.

The Burial of Persons May be Limited to a Certain Religious Faith

In 1961, the Minnesota Supreme Court determined that the religious anti-discrimination provisions found in M.S., Section 507.18 were not applicable to the sale of cemetery lots in:

  • Minnesota private cemeteries,

or

  • Minnesota public cemeteries which were affiliated with religious entities:

An essential element of many religious beliefs, strongly held for centuries, has been that their communicants must be buried in consecrated ground in which only communicants of that particular faith may be buried.

The right of burial in a religious or fraternal cemetery derives from membership.

It is for that reason that church cemeteries are classified as private cemeteries in which the exclusive burial of communicants of a religious faith may be practiced in accordance with its beliefs.

Erickson v. Sunset Memorial Park Ass’n, 1961, 259 Minn. 532, 108 N.W.2d 434.

However, the Minnesota Supreme Court did confirm that racial restrictions imposed by public cemetery associations were void, and of no effect – pursuant to M.S., Section 507.18.

 Racial and religious based discrimination in Minnesota cemeteries is discussed at https://dahlelawcemeteries.com/religious-discrimination-sale-minnesota-cemetery-lots/

Minnesota Private Cemeteries – Chapter 315

Minnesota Statutes, Chapter 315 – so designated in 1941 – is a collection of miscellaneous statutes, most dating from Minnesota’s early days, which may govern a variety of religious entities – ranging from:

  • those with congregational structures – where the members control the entity, to
  • those which are hierarchical in nature – where the society’s leaders are in charge.

However, the provisions of Minnesota Statutes, Chapter 315 have:

  • no application to nonprofit corporations governed by Minnesota Chapter 317A, and
  • only limited application to religious societies which are subject to Chapter 315, since many of its statutes only apply to certain forms of religious entities.

Minnesota Chapter 315 – Certificate of Incorporation

Many Minnesota Chapter 315 religious corporations came into existence by filing a “Certificate of Incorporation” with the county recorder in the county in which the religious society was located, which Certificate:

  • identified the official name of the religious society,
  • specified the qualifications for trustees – who serve a function equivalent to corporate directors,
  • identified the initial trustees of the religious society, and
  • perhaps identified the church synod or denomination with which the religious society would be affiliated, or to which it would be subjected.

Minnesota Chapter 315 – Corporate Documents

A religious corporation or society subject to the provisions of Minnesota Statutes, Chapter 315, generally has two, and sometimes three documents which govern its affairs:

  • a Certificate of Incorporation, which contains certain statements required by Chapter 315, and is filed with the county recorder in the County where the religious society is located;
  • a Constitution – an internal religious society document not filed with any governmental agency – which contains provisions governing the religious society’s internal affairs, and usually, doctrinal statements of the religious society; and/or
  • Bylaws another internal religious society document not filed with any governmental agency – containing provisions governing the religious society’s affairs which may be given a lesser status than those contained in any Constitution of the religious society.

Minnesota Chapter 315 religious corporations that have both a Constitution and Bylaws tend to have:

  • the more important provisions listed in a Constitution, and
  • the less important provisions listed in Bylaws.

Sometimes, the headquarters of the denomination in which the religious society is a member may either require, or suggest, the adoption of a Constitution and Bylaws which contains certain provisions.

Often, there is a different, and more difficult, procedure required to amend a religious society’s Constitution, than to amend its Bylaws.

In general:

  • the provisions of a religious society’s Constitution and Bylaws cannot be in conflict with any provisions of the religious society’s Certificate of Incorporation, and
  • neither the Certificate of Incorporation, nor the Constitution and Bylaws of the religious society can be in conflict with any applicable provisions of Chapter 315.

Minnesota Chapter 315 – Management

 (i)      Minnesota Religious Corporation Trustees

 Many Minnesota Chapter 315 religious corporations are under the direction and control of “trustees” or “elders”.

Other Minnesota Chapter 315 religious corporations are under the direction and control of bishops, chancellors, wardens, ministers, elders, vestrymen or other persons.

(ii)     Powers of Minnesota Religious Corporation Trustees

M.S Section 315.05 identifies certain statutory powers of the trustees of a religious society organized under the provisions of M.S Section 315.01, by providing in part as follows:

The trustees may . . . ,

  • make rules and orders for managing the temporal affairs of the church, congregation, or society, and
  • dispose of money belonging to it.

They may regulate the . . .  the breaking of ground in their cemeteries.

However, religious corporations sometimes limit the transactional powers of such trustees or elders by requiring that resolutions with respect to certain types of actions first receive the affirmative vote of a certain percentage of the members of the religious society’s voting members.

Minnesota Chapter 315 – Difference Between “Society” and “Corporation”

M.S Section 315.05 identifies the difference between a religious society, and a religious corporation, by providing in part as follows:

In this chapter [315] “society” means the religious body constituted in accordance with the principles of the ecclesiastical polity which forms the basis of the corporation designated in this chapter as the

  • church,
  • congregation, or
  • society,

as distinguished from the corporation itself.

Minnesota Chapter 317

Between 1951 and 1991, some Minnesota non-profit corporations were governed by Minnesota Statutes, Chapter 317, the predecessor body of non-profit corporation law to Chapter 317A.

Former M.S Section 317.05 identified that a Minnesota nonprofit corporation could be formed under that chapter for any lawful purpose, including a religious purpose.

Minnesota Chapter 317A

The term religious corporation has been part of the statutory language which is used to identify a Minnesota private cemetery since at least 1911.

However, Minnesota Statutes, Chapter 317A became effective on August 1, 1989, and its predecessor body of law, Minnesota Statutes, Chapter 317 was adopted in 1951.

The provisions of Chapter 307 as adopted in 1903 which referred to religious corporations, would have been made with respect to religious corporations identified in:

  • Chapter 34, Section 3022-3085 of Minnesota Statutes, 1894, and subsequently
  • Chapter 58, Section 3133, laws of 1905,

and no other chapter of Minnesota Statutes.

The 1894 and 1905 religious corporation statues were eventually reorganized in 1941 as Minnesota Statutes, Chapter 315.

Nevertheless, the statutory language in Chapter 317A making reference to religious corporations may qualify corporations formed under that chapter as entities eligible to organize and operate a Minnesota private cemetery.

Minnesota Chapter 317A Entities as a Religious Corporation

Minnesota Statutes, Section 317A.909, Subd. 1 identifies that a corporation formed under Chapter 317A can be organized for a religious purpose, by providing in part as follows:

Subdivision 1.   Benefits for members.

When authorized by its members or otherwise, a corporation formed for a religious purpose may provide directly or through a church benefits board for:

  1. support and payment of benefits to its ministers, teachers, employees, or functionaries and to the ministers, teachers, employees, or functionaries of a nonprofit organization affiliated with it or under its jurisdiction;
  2. payment of benefits to the surviving spouses, children, dependents, or other beneficiaries of the persons named in clause (1);
  3. collection of contributions and other payments; or
  4. creation, maintenance, investment, management, and disbursement of necessary endowment, reserve, and other funds for these purposes, including a trust fund or corporation that funds a “church plan” as defined in section 414(e) of the Internal Revenue Code of 1986, as amended through December 31, 1988. . . .

Minnesota Chapter 317A – Religious Corporations

Minnesota Statutes, Section 317A.909, Subd. 3 refers to certain corporations formed under Chapter 317A as religious corporations, by providing in part as follows:

Except for property leased or used for profit, personal and real property that a religious corporation necessarily uses for a religious purpose is exempt from taxation.

Minnesota Chapter 317A Corporations Establishing Cemeteries

Since:

  • Minnesota private cemeteries are those established by religious corporations, and

All cemeteries started or established as public cemeteries and

all cemeteries hereafter started or established,

except cemeteries established by religious corporations,

are public cemeteries within the provisions of . . . chapter [306].

the governing documents of a Minnesota nonprofit corporation formed under Minnesota Statutes, Chapter 317A, would need to clearly identify that the corporation was a religious corporation in order to organize and operate a Minnesota private cemetery.

Minnesota Private Cemetery 

Minnesota nonprofit corporations organized under Minnesota Statutes, Chapter 317A are further discussed at http://dahlelawchurches.com/minnesota-chapter-317a-corporations/

For a discussion of Minnesota probate law, see https://dahlelawprobate.com/

For a discussion of Minnesota probate law, see also  https://www.dahlelawminnesota.com/

For a discussion of Minnesota probate law, see also https://dahlelaw.com/minnesota-probate/

For information on Minnesota Church Corporation law, see Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see http://dahlelawguardianships.com/

For information on Minnesota Church Corporation law, see Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see http://dahlelawguardianships.com/

Topics of Interest:

Minnesota Private Cemeteries 

Copyright 2018 – All Rights Reserved

No claim to the text of statutory provisions, administrative documents, or judicial decisions.

Gary C. Dahle – Attorney at Law

Minnesota Probate and Cemetery Law Attorney

2704 Mounds View Blvd., Mounds View, MN 55112

Phone:  763-780-8390  Fax:     763-780-1735

gary@dahlelaw.com

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota cemeteries involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with legal counsel.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota, or North Dakota, should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

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Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

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Minnesota Cemetery Links

Minnesota Association of Cemeteries: https://www.mncemeteries.org/

Find a Minnesota Cemetery: https://www.mncemeteries.org/find-a-cemetery

Minnesota Private Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=307

Minnesota Public Cemetery Statutes: https://www.revisor.mn.gov/statutes/?id=306

Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present:  http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificateshttp://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Recordshttps://moms.mn.gov/