Grave Matters: Accessing Cemeteries on Private Property

We hear about rights of access to private property every now and then, such as leafleting on private property and union organizers speaking to workers on employers' property.  But generally we think that a central right of property is the right to exclude.  So here's a right you likely haven't heard about: those who are related to people buried on private property have an implied easement in gross to visit that property.  It's protected by statute in about a quarter of (largely southern) states. 

This is a pretty strange right, don't you think?  Where did it come from?  There are cases going back well into the nineteenth century that support the right of relatives (more on this shortly) to visit cemeteries on private property.  In a lot of ways, it's a typical implied reservation of an easement.  The idea here is that when the landowner permitted burial on the property, she implied granted the right to family members to visit the grave.  This can be supported, I think, on a theory of easement by estoppel as well.  Then, when the original owner sold the property she impliedly reserved a grant in favor of the family members to visit the cemetery.  (In many cases, the landowner is also a relative; so in those cases, I think the case for an implied easement is a little more direct; at the time the landowner/relative sold, she impliedly reserved for herself and other relatives the right of access.)

Virginia has the most detailed statute.  It provides for broad rights of access by relatives of the decedent and researchers:

A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both.  The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by view of the property.  The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.

B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research.  The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by motor vehicle and the owner has given written permission to use the road or right-of-way of necessity. . . .

Va. Code Ann.§ 57.27.1 (1993).

There are lots of questions left open about the right, as is true of many implied easements.  What's critical about the implied reservation is that there be some form of notice to the subsequent purchaser. Thus, it might be reasonable to ask there be some evidence that there is a grave on the property, although the Virginia statute does not have such a requirement.  And I can imagine that a lot of other evidence might be used, like reputation in the community (or drawing on the example of Van Sandt v. Royster, perhaps even what one would reasonably expect).  There are also questions about how closely one must be related to the deceased to be able to exercise the easement in gross. Again, Virginia leaves this open; and so I think it's reasonable to think anyone who can establish a connection.

Anyway, I have a paper that talks a lot about this.

I love visiting cemeteries; there's something about seeing the inscriptions on headstones that I find particularly moving.  How is it that people remember their loved ones?  Pretty much everything we know about these individuals now is what's on their tombstone.  Cemeteries are, of course, important ways of remembering the past; and there's more than a little to be said about cemeteries (and monuments, too) as places where we have conflicting memories of the past, particularly of the Civil War.    Of course, cemeteries can help us remember much more than the Civil War.  There has been some terrific work done in recent years to help preserve cemeteries, especially family cemeteries.  The Ames Plantation has a detailed website, which discusses some family cemeteries in their part of Tennessee. And, with DNA, there are increasing possibilities of connecting the people alive today with those buried long ago, as the recent rediscovery of a cemetery in Portsmouth, New Hampshire, reminds us.  These issues are appearing with increasing frequency, as this story about a slave cemetery along a highway in South Carolina shows.

Endnotes:  The picture is of the Mount Auburn Cemetery in Cambridge, Massachusetts.

Alfred L. Brophy

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