Friday, June 10, 2011

And Take Your Parents With You

The Vermont Supreme Court has held that a litigant had no right to bury the cremated remains of his parents in a hilltop cemetery on the farm formerly owned by his family. The court looked to the common law of family gravesites (which I believe my professor did not cover in teaching me the common law antecedents of civil procedure).

The facts:

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner, J. Michel Guite, now owns the farm property.  He claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent’s family purchased the farm property in 1950 and owned it until 1983.  Prior to selling the property, respondent, Jerome King, buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot.  Thus, he contends title to the plot remained with the farm so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

The material facts are not in dispute.  During their ownership and use of the Hartland farm from approximately 1775 until 1853, the Aldrich family and its descendants buried at least three family members in the hilltop cemetery.  When Aldrich family descendants Jude and Rebecca Adams sold the entire farm property in 1853, the deed included the following language:  “We . . . do freely give grant sell convey and confirm . . . a certain piece of land lying and being in Hartland . . . . Possession to be given the first day of April 1854.  Excepting out of the above described premises 41 feet of ground by 27 feet which is the burying ground on said premises.”  (Emphasis added.)  The record contains no evidence that the Adams’s or their heirs recorded a separate deed to the cemetery plot, nor any evidence that the family ever paid property taxes on the plot.  The cemetery exception that began with the 1853 deed was included in all subsequent deeds transferring the farm property.

In 1950, respondent’s parents purchased the farm and lived there for about thirty years.  In 1981, after his parents passed away, respondent buried both of their cremated remains in the cemetery.  When respondent carried out this burial, he neglected to obtain any burial permits from the town.  He did not seek permission to use the hilltop cemetery from any remaining Aldrich family descendants.  In 1983, respondent sold the entire Hartland farm property on behalf of his family’s trust.

The holding:

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely only upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.

(Mike Frisch)

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