Property in a Grave Situation

In this timely and entertaining column, Professor Victoria Sutton explores the unusual legal disputes that arise over cemeteries and burial plots. Through a series of cases involving adverse possession, cemetery ownership, burial rights, and maintenance obligations, Sutton shows why cemetery property law is anything but straightforward. With plenty of graveyard humor along the way, she demonstrates how courts have wrestled with questions of who owns cemetery land, who is responsible for maintaining it, and how long-standing burial practices can affect property rights. Halloween and Day of the Dead are holidays that are less than two months away. Cemeteries figure largely into these holidays, and so the following should arm you with enough graveyard-law humor to get through the holidays. After all, cemetery law may be a dead subject, but the cases are surprisingly lively. And, as you will see, some property disputes simply refuse to rest in peace. These stories all deal with disputes over ownership of cemeteries and will put to rest any ideas you might have that cemetery titles are straightforward. If an occupant who is no longer alive stays in someone else's burial plot long enough, a family may be able to claim adverse possession—that is, ownership. Adverse possession is defined by each state, but often includes descriptions of trespassers who occupy land continuously and exclusively, and whose possession is hostile, open, and notorious (meaning it is contrary to the property rights of the true owner). In Hughes v. Harden , the Oklahoma Supreme Court held that burying someone else in someone else's burial plot constituted a continuing trespass . This is important because, otherwise, adverse possession might begin to run its course and eventually vest ownership in the new occupant. Even though the new occupant had been stiffed by the cemetery owner, who sold him plots he did not have the right to sell, the court still found that the body had to be moved. In another case, adverse possession did vest where a city in Iowa had maintained a cemetery and sold plots in it since the 1800s. The cemetery was part of a 35-acre tract that had been owned in fee since 1995 by a farmer who purchased the property. The Township of Poweshiek asserted that it owned the cemetery through adverse possession and also claimed an easement by necessity for access. The farmer claimed he was protected by a 2009 state statute that prevented anyone from taking ownership of a cemetery by adverse possession. The court held that ownership of the cemetery had vested through adverse possession long before 2009. So, in Poweshiek Township v. Gannon , the court held for the Township. Here, adverse possession gave the Township the rights it needed to maintain and control the cemetery, despite its sale to the farmer in 1995. By 2009, the farmer's argument was already dead and buried—the Township's title had vested long before. In South Carolina, the heirs of a parcel of land that included a cemetery long maintained by a church announced that they were the owners and would charge $500 for burial plots in 2006, more than a century after the property had been dedicated to the church. In Huxfield Cemetery Ass'n v. Elliot , the court stopped the heirs dead in their tracks. In 1881, a deed excepted three acres known as the Huxfield Graveyard 'to be used as a Public Burying Ground.' Through subsequent conveyances, the cemetery remained in the hands of the original church and then its cemetery association. So, inheriting land could carry with it a centuries-old recognition of an easement for burials, even though you may have title to all of the land. In Alabama, in Ebenezer Baptist Church v. White , the Alabama Supreme Court held that adverse possession of a cemetery could vest, but the title was an easement or limited permission to use it. In this case, the private cemetery had been conveyed to Ebenezer Baptist Church in 1909, but the families had assumed responsibility for the maintenance and care of the cemetery. In 1984, the church attempted to take responsibility for maintaining the cemetery and began charging a burial fee to pay for its upkeep. But the court said the church was dead wrong. It granted an injunction sought by family members to stop the church from taking over maintenance of the cemetery, while finding that the church still held title to the land. In the category of 'be careful what you wish for,' a family in Florida declared their private cemetery a cemetery for public use. However, the property owner on whose land the cemetery was located objected. The nail in the coffin for the family's public dedication of the cemetery was that they tried to limit its public use to only the families who had previously used the cemetery—in effect, having the public pay for their private cemetery. The court in Mingledorff v. Crum held that their dedication, which could have been a valid one simply by showing intent, was narrowed to allow only those families to use the cemetery, meaning it was strictly not for 'public use.' So, they came to court hoping to bury their maintenance obligations with the public and instead dug up a legal duty of their own: They were obligated to maintain the cemetery themselves. Final Thoughts These cases show how ordinary rules of adverse possession do not always fit comfortably in cemeteries and can be a grave matter. Courts must decide whether maintaining graves constitutes possession, whether farming around them is adverse, whether cemetery land can be adversely possessed at all, and even whether burying someone in another person's burial plot can begin the clock running toward ownership. Every state has its own property-law definitions, statutes, and case law, so legal advice is strongly encouraged for any cemetery-related legal issue. After all, this is one area of property law where you really do not want to dig yourself into a hole. Perhaps the lesson is that adverse possession and cemeteries have something important in common: Both reward those who remain in possession for a very long time. But before claiming cemetery property as your own, remember that some occupants have a considerable head start. To read more articles by Professor Sutton go to: https://profvictoria.substack.com/ Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.