Cemeteries and lands associated with places of worship can create numerous challenges for Land Use Professionals. Modern cemeteries are easily identified; however, older burial sites, Native American remains and small family cemeteries exist in most states—and are often difficult to recognize.
Any discussion of legal aspects of burial sites and the rights of descendants inevitably includes standards related to specific religious practices—as a result, this article identifies several systems of belief without showing favoritism between them.
Disputes over access often arise between the owner of the surrounding property and descendants of those interred in old family graveyards. Common law standards, local ordinances and individual state laws may vary the circumstances where legal access to burial sites is recognized.
Property titles associated with family cemeteries can come in several forms. Among the possibilities are:
· Separate Fee Title
· Dedicated Area – Servitude
· Trust or License
· Association with a Church/Place of Worship
· Commercial/Church/Family/Private/Veterans/Potters Field cemeteries often have different statutory and common law protections
Many old deeds or wills will except or reserve a cemetery lot without defining the separate right that is to be created or separated from the larger estate. Depending on circumstances, the separate tract could be a separate fee estate, a dedication to public or church use, or some other—and sometimes undefined—separation from the original parent tract.
Early Antecedents
Fundamental rights associated with burial sites are based in common law, but with variations unique to the American legal system. This is a species of real property law, but it is only imperfectly analogous to law of easements or other servitudes.
One source of the underlying confusion that exists in the United States relates to the lack of any enforceable ecclesiastical law or Canon Law that applies in much of Europe. Even though Western culture was brought to the American Colonies by various European groups, The United States has no state-sanctioned church courts to adjudicate disputes over lands held by various religious groups. Despite this apparent restriction, American courts are often called on to adjudicate civil disputes over property titles.
It is also true that the early settlers were generally members of various Protestant denominations, who brought religious principles from Europe without transporting the legal authority that existed in the old-world countries.
Samuel B. Ruggles
A major relevant contribution to the United States legal system was made circa 1856 by Samuel B. Ruggles, a respected New York Attorney who was tasked by the New York court system to provide an opinion on the rights associated with burial sites. His report has been cited with approval by courts nationwide and his writings represent a significant basis for modern decisions in the United States.
An Indiana decision highlights the quick spread of Ruggles’ writings, as seen in Bogert v. City of Indianapolis: 13 Ind. 134 (1859). This ruling includes the enduring list of rights originally developed by Mr. Ruggles:
1. That neither a corpse, nor its burial, is legally subject, in anyway, to ecclesiastical cognizance, nor to sacerdotal power of any kind.
2. That the right to bury a corpse and to preserve its remains, is a legal right, which the Courts of law will recognize and protect.
3. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin.
4. That the right to protect the remains, includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure.
5. That if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense of removing and suitably reinterring their remains.
As noted previously, this list has been repeated by numerous courts, including—but not limited to—Florida, Indiana, Ohio, Rhode Island, Pennsylvania, Wisconsin and a Federal Court ruling over a dispute in California.
The Pennsylvania court upholds the common law “Right of Sepulture” in Wynkoop v. Wynkoop: 42 Pa. 293 (1861). Quoting Ruggles, this court describes the term as a right of burial: “So universal is the right of sepulture, that the common law, as it seems, casts the duty of providing it, and of carrying to the grave, the dead body decently covered, upon the person under whose roof the death takes place; for such person cannot keep the body unburied…”
Protections for Cemeteries
Both State and Federal law will protect certain cemeteries or burial sites. State laws vary widely with various jurisdictions protecting many burial sites, but using different criteria to determine those that are included within the scope of any individual statute. Specific language is always of critical importance, as statutes may protect some sites while ignoring others. Cemeteries may have many levels of protection, depending on their physical characteristics, visibility, age, current and past usage and/or the race, prominence and number of individuals interred. Some general categories include:
State/National Historic Site Designations.
State laws relating to cemeteries, burial sites or commemorative markers.
Federal Laws protecting Native American burial sites.
In addition to the areas of law described above, common law protections also exist, as described by Mr. Ruggles.
Research is a Must
Tracts used for family cemeteries often go entirely unmentioned in the chain of title, yet a separate right can exist independently of the documents recorded in the local courthouse. The New Jersey decision Van Buskirk v. Standard Oil: 94 N.J. Eq. 686 (1923) highlights this problem: “I cannot interpret the will of James Van Boskerk as intending to devise the burial ground to his son John and I am of the opinion that in devising his real estate to his three sons, James Yan Boskerk expressly excepted the burial ground and made no testamentary disposition thereof.” The court concluded that this exception represented a dedication of the cemetery parcel, but there was no trustee or other entity identified as the recipient of the dedication.
Another high-profile dispute over a church cemetery is described in the U.S. Supreme Court decision Beatty v. Kurtz: 27 U.S. 566 (1829). The original map of this area of Georgetown showed a lot reserved for the “sole use and benefit” of a church, but the court concluded that this language did not transfer title. At the time, Georgetown was not incorporated, so there was no legal entity that could take title as a grantee.
The court concluded that a dedication had occurred: “In the case of The Town of Pawlet vs. Clarke, 9 Crunch, 292. 331, this Court considered cases of an appropriation or dedication of property to particular or religious uses, as an exception to the general rule requiring a particular grantee; and like the dedication of a highway to the public.” This quotation highlights the sometimes vague outcome regarding the quality of title associated with ancient burial sites.
Duration of Cemetery Rights
At common law, a right to maintain and visit the site of a burial exists for descendants and friends as long as the location of the site is marked or known. In some cases, all visible evidence of old family cemeteries may have disappeared and no living person may know the location of the site. Where no marks or living memory of a burial site remain, the right to visit terminates.
This right of access appears to be a species of servitude, but is not generally recognized as an easement. Courts have struggled—with little success—to categorize this right, as described in the North Carolina decision Floyd v. Atlantic Coast: 167 N.C. 55 (1914): “Nevertheless, the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect. While the body is not property in the usually recognized sense of the word, yet it may be considered as a sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it…”
This lack of clarity does not lend itself to easy categorization. Other courts have been similarly vague on the exact nature of rights of sepulture.
Many additional issues are critical, particularly regarding both the identification of subtle clues that may indicate an existing cemetery, and the determination of the type and location of the actual property titles, easements and rights associated with it.
P.S. I've now built a class on this topic...
