Kansas Attorney General Opinion 2018-006

January 26, 2018
ATTORNEY GENERAL OPINION NO. 2018- 6
Tamara Niles, Legal Counsel
Unified School District No. 470, Cowley County
125 W. 5th Avenue
Arkansas City, Kansas 67005
Re: 	Corporations—Cemetery Corporations—Definitions; Cemetery Corporation
Roads 	and 	Bridges—General 	Provisions—Access 	to 	Public 	Highway,
When; Petition; Payment of Expenses
Township and Township Officers—Public Parks and Cemeteries—Care of
Abandoned Cemeteries
Synopsis: 	A cemetery corporation must be the owner of the abandoned cemetery in
order to initiate a proceeding under K.S.A. 2017 Supp. 17-1367. Pursuant
to K.S.A. 80–916, a township board is required to provide for the care of
any cemetery within its boundaries that is determined to be abandoned. By
contrast, a county may provide care for an abandoned or uncared for
cemetery pursuant to K.S.A. 19-3106 and 19-3107, respectively. 	The
maintenance, upkeep, and repair of a road opened pursuant to K.S.A. 68-
117 forever remains the responsibility of the owner or owners, their
grantees, successors or assigns, of the land specifically benefited by the
establishment of such public road, and such expense or liability never
transfers to the township or other municipality in which such road is laid out
and established. Cited herein: K.S.A. 2017 Supp. 17-1301c; 17-1366; 17-
1367; K.S.A. 19-3106; 19-3107; 68-117; 75-704; 80-916.
* 	* 	*

Tamara Niles, Legal Counsel
Page 2
Dear Ms. Niles:
As legal counsel for Unified School District No. 470, Cowley County (U.S.D. 470), you
ask the Kansas Attorney General to find that Liberty Cemetery is an abandoned cemetery.
Further, you ask us to “establish which entity, if any, has maintenance responsibilities for
Liberty Cemetery;” and to “determine which entity, if any, has a legal responsibility to
provide public access to Liberty Cemetery.”
You state that during unification of school districts in the 1960s, U.S.D. 470 received
ownership of a former school property located within Silverdale Township in Cowley
County. 	Also located on this property is Liberty Cemetery, which contains 31 graves.
The last burial in Liberty Cemetery is purported to be in 1932. 	Unfortunately, records
regarding the creation of the cemetery have not been located. You describe the cemetery
as “an abandoned, landlocked parcel titled in the school district’s name that is not
accessible by a roadway.” 	U.S.D. 470 has taken no action to maintain this parcel as a
cemetery, but the U.S.D. 470 believes that Cowley County has performed some
maintenance within the last 20 years by fencing the gravestones.
You also state that “[U.S.D. 470] understand[s] the Cowley County road that previously
accessed the cemetery [and] traversed both Liberty Township and Silverdale Township
has been informally abandoned and can no longer be driven.” The only access to the
landlocked cemetery is by foot or four-wheel-drive vehicle, through grassland and/or fields
owned by a private citizen. You provided us information that the private citizen/adjacent
landowner allows individuals to access the cemetery through his land, so there is no issue
of an access easement. Because you state there is no issue of easements, we construe
your question to be limited to whether a public entity is legally required to provide public
roadway access to Liberty Cemetery.
This request raises concerns between the various parties’ rights and duties relating to a
cemetery. Such an undertaking requires known facts or facts determined by a finder of
fact which we have not been given. 	Therefore, we cannot specifically opine on your
questions. 	However, we can provide you the pertinent statutes to apply once facts
become known.
Abandonment
You ask the Attorney General to find that Liberty Cemetery is abandoned. The statutory
authority for the Attorney General to determine the existence of an abandoned cemetery
is pursuant to the Cemetery Corporations Act (Act).1
Under the Act, a cemetery corporation2 holds title to a cemetery and is responsible for
care 	and 	maintenance 	of 	that 	cemetery. 	To 	ensure 	perpetual 	proper 	care 	and
1 K.S.A. 2017 Supp. 17-1301c et.seq.
2 “‘Cemetery corporation’ means any individual or entity required to maintain permanent maintenance funds
under the provisions of K.S.A. 17-1312f, and amendments thereto.” K.S.A. 2017 Supp. 17-1301c(c).

Tamara Niles, Legal Counsel
Page 3
maintenance of the cemetery, the cemetery corporation is required by statute to maintain
a permanent maintenance fund, among other things.3 If a cemetery is deemed to be an
“abandoned cemetery” under the Act, an appropriate action filed in the district court to
dissolve the cemetery corporation shall be instituted by the Attorney General. 4 	Upon
dissolution of the cemetery corporation, title to the property shall vest in the municipality 5
in which the cemetery is located and any liens against such property shall be immediately
quashed, null and void and unenforceable on and after January 1, 2003. 6 	All moneys
from the permanent maintenance fund or investments shall be transferred to the treasurer
of such municipality and shall become the property of the municipality for the care and
maintenance of the cemetery.7
As used in the Act, “‘abandoned cemetery’ means:
(1) Any cemetery owned by a corporation, as defined in K.S.A. 17-1312f,
and amendments thereto, in which, for a period of at least one year, there
has been a failure to cut grass or weeds or care for graves, grave markers,
walls, fences, driveways and buildings; or
(2) any cemetery owned by a corporation, as defined in K.S.A.17-1312f, and
amendments thereto, in which for a period of 180 days, proper records have
not been maintained and annual or quarterly reports have not been made
to the secretary of state, pursuant to the provisions of K.S.A. 17-1312a et
seq., and amendments thereto.”8
In your request letter, you assume that “some sort of cemetery corporation must have
owned and maintained the cemetery at one point in history” but you were uncertain when.
Ownership of the cemetery is a critical fact because it determines which statute applies.
For example, if the facts establish that a cemetery corporation abandoned the cemetery,
K.S.A. 2017 Supp. 17-1367 could be applied and the cemetery property would vest in the
3 	“‘Permanent maintenance fund’ means a certificate of deposit, a business savings account, or an
irrevocable trust fund whose proceeds are derived from not less than the funding requirement as defined
in subsection (e).” 	K.S.A. 2017 Supp. 17-1301c(h). 	Subsection (e) provides, “‘[f]unding requirement’
means that portion of the purchase price equal to 15% of the purchase price, but not less than $25, of a
burial lot; 10% of the purchase price, but not less than $100 per community mausoleum crypt; or 5% of the
purchase price, but not less than $50 for each garden mausoleum crypt or niche set aside in the permanent
maintenance fund.” K.S.A. 2017 Supp. 17-1301c(e).
4 K.S.A. 2017 Supp. 17-1367.
5 “‘Municipality’ means the cemetery district in which all or any portion of an abandoned cemetery is located.
If no portion of such cemetery is located within a cemetery district, the term shall mean the city in which all
or any portion of an abandoned cemetery is located unless such cemetery is not within the corporate limits
of a city, in which case such term shall mean the county in which such cemetery is located.” K.S.A. 2017
Supp. 17-1366(b).
6 K.S.A. 2017 Supp. 17-1367. We note that this statute was found unconstitutional as applied in State ex
rel. Six v. Mike W. Graham & Assocs., LLC, 42 Kan. App. 2d 1030, 1041 (2009). The Court of Appeals
found the statute was unconstitutionally applied retroactively to defeat Appellant’s preexisting lien rights,
thus infringing upon due process of law in the case at bar.
7 K.S.A. 2017 Supp. 17-1367.
8 K.S.A. 2017 Supp. 17-1366(a).

Tamara Niles, Legal Counsel
Page 4
municipality, which you state in your correspondence is the County. 	If the facts
established that the term “cemetery corporation” is used generically and is actually meant
to describe a private township cemetery association organized under the laws of Kansas
as a nonprofit corporation, and such “cemetery corporation” abandoned the cemetery,
K.S.A. 80-934 could be applied and the cemetery property would vest in the township. 9
If the cemetery is not owned by a cemetery corporation, K.S.A. 2017 Supp. 17-1367 would
not apply.
Because a cemetery corporation must be the owner of the abandoned cemetery in order
to initiate a proceeding under K.S.A. 2017 Supp. 17-1367, and it is not known whether a
cemetery corporation holds the title to Liberty Cemetery, we cannot apply the Act to your
first question.
Maintenance
You ask us to establish which entity, if any, has maintenance responsibilities for Liberty
Cemetery. 	You listed U.S.D. 470, Cowley County, Silverdale Township or adjacent
landowners as entities that may have maintenance responsibilities for Liberty Cemetery.
U.S.D. 470 is the owner of the land upon which Liberty Cemetery is located. 	However,
we did not find any Kansas statutes imposing a duty of maintenance on a landowner who
has no connection to the cemetery other than owning the land. It may be that the deed
conveying the land has restrictive covenants in it that imposes a duty of maintenance, but
such a review is outside the scope of this written opinion. 	Also, we did not find any
statutes imposing a duty of maintenance on an adjacent landowner who has no
connection to the cemetery other than owning the adjacent property.
There is a statute that provides for the expenditure of public moneys for the care of
abandoned cemeteries by townships. 	K.S.A. 80-916 requires a township board to care
for abandoned cemeteries within its boundaries. The statute provides:
From and after the passage of this act it shall be the duty of the township
board of any township within the state of Kansas in which there is situated
an abandoned cemetery to provide for the care of such cemetery and to
provide for the proper and seasonable cutting of all weeds and grass therein
at least twice each year; and for such purposes such township board shall
appropriate and expend not more than $500 per year for each such
cemetery.
9 K.S.A. 80-934 provides, “Any private township cemetery association organized under the laws of Kansas
as a nonprofit corporation which has failed to operate and maintain its cemetery for a period of more than
ten (10) years and which has been maintained by the township under the provisions of K.S.A. 80-916 for a
period of at least five (5) years may be declared abandoned and extinct by order of the district court of the
county in which the cemetery is located and the title to the cemetery property of such association vested in
the township in the manner hereinafter provided.”

Tamara Niles, Legal Counsel
Page 5
This statute was enacted in 1917 and contained the language imposing the duty of the
township board to care for abandoned cemeteries. 10 The statute was amended to change
the amount a township board was authorized to spend on the cutting of all weeds and
grass. 11 Otherwise, the statute has continuously imposed the duty on the township board
to care for abandoned cemeteries within the boundaries of the township, up to the
statutory amount. This statute does not contain language requiring a finding of ownership
of the abandoned cemetery. The Legislature, with the use of plain language, imposed a
duty on the township for the basic care of an abandoned cemetery.
There also is a statute that provides for the expenditure of public moneys for the care of
abandoned or uncared for cemeteries and burial places by counties. 	K.S.A. 19-3106
authorizes a county to levy a tax to care for a cemetery or a burial place that has at least
3 human bodies that have been interred and that has been uncared for and abandoned
for at least 5 years.
Another statute, K.S.A.19-3107, authorizes a county to levy a tax to care for cemetery or
burial place that has at least 10 human bodies that have been interred and that has been
uncared for, for at least 5 years.
Both K.S.A. 19-3106 and 19-3107 authorize but do not require the board of county
commissioners to levy a tax to provide care for an uncared for or abandoned cemetery in
the county. 	These statutes do not impose a duty on the counties to care for such
cemeteries. 	Therefore, counties cannot be made to expend public moneys on the
maintenance of such cemeteries, but counties have discretion to expend public moneys
on such cemeteries. 	These statutes do not contain language requiring a finding of
ownership by a cemetery corporation, other corporation, municipality or other entity. The
only requirement is a qualifying abandoned or uncared for cemetery that is in need of
maintenance.
Whether Liberty Cemetery is “abandoned” under K.S.A. 80-916 or K.S.A. 19-3106, or
“uncared for” under K.S.A.19-3107 is a factual matter,12 so we will not opine on this
question. We only opine on questions of law. 13 However, we can conclude that, pursuant
to K.S.A. 80–916, a township board is required to provide for the care of any cemetery
within its boundaries that is determined to be abandoned; and a county may provide care
for an abandoned or uncared for cemetery pursuant to K.S.A. 19-3106 and 19-3107,
respectively.
Public Road Access
You ask for the Attorney General’s opinion on “whether any public entity has a legal
requirement to provide public access, and if so, which entity has a legal responsibility to
10 L. 1917, Ch. 84, §1.
11 L. 1917, Ch. 84, §1 authorized $10.00 per year; L. 1919, Ch. 105, § 1 authorized $50.00 per year; and
L. 1982, Ch. 72, § 14 authorizes $500 per year.
12 See State ex rel. Stephan v. Lane, 228 Kan. at 390, 391; Campbell v. City of Kansas, 13 S.W. at 901.
13 See K.S.A. 75-704.

Tamara Niles, Legal Counsel
Page 6
do so.” Because you stated there was no access easement question, 14 we construe your
question to be limited to whether a public entity is legally required to provide public
roadway access to Liberty Cemetery.
The general rule for access to a public highway by a landlocked property is found in K.S.A.
68-117. The statute provides that, upon the proper presentation of a petition setting forth
the use and purposes of such proposed road, the board of county commissioners “shall
proceed in accordance with the provisions of K.S.A. 68-101 to 68-110, both sections
inclusive, and K.S.A. 68-115 and 68-116” to lay out 	such road. 	Further, K.S.A. 68-117
provides that:
[T]he owner or owners, their grantees, successors or assigns, of the land
specifically benefited by the establishment of such public road, shall
forthwith pay all expenses of establishing said road, including all damages,
if any should be held or allowed and thereafter forever maintain and keep
the same in repair and without any expense or liability to the township or
other municipality in which such road is so laid out and established.
Whether the “Cowley County road” that previously accessed the Liberty Cemetery was a
road opened pursuant to petition as set forth in K.S.A. 68-117 is a question of fact, so we
will not opine on the question. However, we can conclude that the maintenance, upkeep,
and repair of a road opened pursuant to K.S.A. 68-117 forever remains the responsibility
of the owner or owners, their grantees, successors or assigns, of the land specifically
benefited by the establishment of such public road, and such expense or liability never
transfers to the township or other municipality in which such road is laid out and
established.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
14 Even if there was an issue, it is likely a court would find the existence of an implied easement by necessity
that would allow relatives of individuals buried in Liberty Cemetery to access the gravesites. See Stroda v.
Joice Holdings, 288 Kan. 718, 724–27 (2009).