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Monday, March 27, 2006

Grave Matters: Accessing Cemeteries on Private Property

Mountauburncemetery 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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» More on Cemeteries: The Conflict Between Memory and Development from PropertyProf Blog
Lest you think my post on cemetery access was emphasizing an unimportant right, my colleague Justin Levinson points out that yesterday's Washington Post has an article, “More Family Cemeteries Dying Away in the South,” on the conflict between preservi... [Read More]

Tracked on Mar 28, 2006 3:17:13 PM

» Grave Decisions in Florida from PropertyProf Blog
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Thanks to Carl Christensen for this story from the New York Times , New Homes Confront Old Burial Grounds. The article begins:DAC ENTERPRISES, a small, mostly residential developer in Georgia, bought about 118 acres in Hall County, just south of [Read More]

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Comments

I am interested in a a rural property which includes a family burial plot. I can understand the access privilege. Does the right to bury additional family memebers in the plot remain after transfer of ownership?

Posted by: Fred Harmeling | Jan 11, 2007 10:58:26 AM

I would aslo like to know the answer to the question Jan 11, 2007 by Fred Harmeling

Posted by: pam adkins | May 4, 2007 10:36:43 AM

Does anyone have information on limiting access to private/family cemeteries in West Virgina.

Posted by: Burton | Oct 17, 2007 5:29:35 PM

Does any one know the law in California regarding a descendant to visit the ancestors grave on private property?

I would appreciate any information that someone might have on the subject.

Posted by: Sherry | Nov 9, 2007 6:19:38 PM

Can anyone cite for me the Code Section of Georgia Laws that requires, if so it does, a county government to keep public roads open to provide access to otherwise isolated cemeteries?

Posted by: Carroll | Sep 7, 2008 8:24:12 PM

I have a question please. If there is a small cemetary on privat e property that the family has rights to and the owners of the land has horses that have completly destroyed the cemetary and the fence around it.Who is responsible to fix it up. All the monuments and gravestones are ruined. Such a shame. i would like to make sure it is taken care of Thankyou for your help

Posted by: jo | Oct 25, 2008 6:24:56 PM

If a old cemetery is on private land and is being used for deer hunting and is unkept what can be done-
I have reason to believe that there are three civil war veterans in the cemetery in Early Co Georgia-
access is being denied to get on the land

Posted by: Debra Morgan | Oct 26, 2008 5:58:35 AM

Who is responsible for the Cemetery?
For: Carol and Debra
That is a big and broad question and there are many answers.
Initally, the families are responsible for the upkeep of individual grave markers.
When all there is no one left to tend to the cemetery or grave marker, the responsiblity falls upon the community. This definition includes civic and social groups, taxing bodies, religious congregations, state and national organizations and the list goes on. The land owner is not responsible, but it would be a very nice geture to protect the cemetery or allow access for maintenance and repair. The history of a cemtery is priceless and irreplaceable.
jch

Posted by: John | Feb 7, 2009 4:46:11 AM

I have a concern in regard to my parent's burial site. My parents were cremated and the cremains were buried in the old cemetary on property where they lived, which is currently owned by my brother. Grave stones were placed so they are not unmarked. due to unforseen circumstances, the property is under foreclosure and is being sold at a foreclosure auction. My concern is this: Will whoever ends up with the property be able to prevent us from visiting and or maintaining my parents gravesites? The property is in New Hampshire.

Posted by: Peggy | May 17, 2009 10:08:57 AM

I not to long found a long lost family cemetery my 4th g grand parents are buried in the cemetery. It has not been taken care of for years and years most of the headstones were broken and trees had fallen i have been working in the cemetery for months i have glued the headstones back together and gotten the trees up it is really starting to look like a cemetery again. now family from my 4th great grandfather's brother is trying to take over . I have done alot of hard work into cleaning it up . Can they do that ? ( the land is not owned by any of our family it is now owned by a timber company ) What can i do about it ?

Posted by: Scott | Aug 22, 2009 9:49:12 PM

My great-great grandparents are buried in a cemetery that is now on private property in Arizona. The landowner flat refuses to let any descendants onto his property to visit the graves of their ancestors. I can't find any site online that states what Arizona's laws are concerning this matter. I have been told by numerous cousins that live in Arizona that gives the landowner complete control of who is and isn't allowed to come onto their property, and that the landowner can deny access to the family members as long as that person owns the land. If that true?

Posted by: S. B. Remmark-Fuhrman | Jan 25, 2012 5:54:42 PM

it appears none of the law professors are interested in answering any of these questions. they apparently have abandoned this "blog"

Posted by: Janet Shapter | Jun 16, 2012 10:18:55 PM

Does a landowner have the right to forbid a fence being put around a cemetery on his property? His cattle trample the graves now.

Posted by: Marie Ford | Jun 27, 2012 3:42:26 PM

i'm trying to find out if i can start my own family cemetry my husband wonts to have a aboveground tumb for him and me we live in ar.

Posted by: ramona brock | Jul 15, 2012 1:20:27 PM

I have looked at buying a property, it has a graveyard on it, right in the center, Missouri statues are not clear on what rights I have has a property owner, and what rights the family of the deceased has.

All it says is "Any person who wishes to visit an abandoned family cemetery or private burying ground which is completely surrounded by privately owned land, for which no public ingress or egress is available, shall have the right to reasonable ingress or egress for the purpose of visiting such cemetery. This right of access to such cemeteries extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits."

I talked to a family member (also president of the SAR chapter named after the deceased)and he says he goes out at least once a month to clean, and they were planning on putting up a new fence. This makes me think twice about buying the property...and advice or other resources I could check out?

Posted by: Dayna | Sep 10, 2012 5:03:32 PM

I am trying to find out about the laws pertainig to a family cemetery that belongs to the Jarvis family. It is located on Ambler Ridge in West Virginia, it is where my Great Great Grandparents on down to my Grandpaernts are buried. At the last visit to this cemetery my mother found numerous vehicles parked blocking her entrance to this cemetery as well as being parked close to some of the headstones, one of which belongs to my Grandparents. There was a fence with a wrought iron gateway that said Jarvis and these have both been removed by caretaker(we believe). Is there anything that protects cemeteries like this in West Virginia? Any help would be greatly appreciated. Thank you.

Posted by: Pam Voss | Apr 10, 2013 7:43:50 PM

we recently purchased land that has an old graveyard located on it. Which is fine because there is an access road but we learned that the Township trustee is still selling off plots. When I called them they said we could be buried there for free since its on our land,,,,????What should i do? Doesnt seem fair that i should be out attorney fees to get this stopped.

Posted by: Sherri Berri | Sep 18, 2013 1:01:01 PM

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