Would an ancient cemetery back in the woods get an easement around it or would you cut the boundary line around it? It is located split on a boundary line between two land owners There is no deed reference to it in either title.
I don't think the owner would go for an easement for access to it.
Thanks
> Would an ancient cemetery back in the woods get an easement around it or would you cut the boundary line around it? It is located split on a boundary line between two land owners There is no deed reference to it in either title.
Very interesting, Is the cemetery an exception in old deeds from the time period of those buried there? additional research prior to the split is probably warranted to find a common title source. Not uncommon to find older descriptions making an exception for the burial grounds which sometimes are not carried down to the current descriptions.
> I don't think the owner would go for an easement for access to it.
Current owners would have a tough time stopping descendant's going in but may be able to stop new burials. One possibility might be to suggest to him to establish an easement now in a practical but less obtrusive location rather than have one dictated in a place he may not like by a court.
Respectfully,
Jim Vianna
I don't have my reference material handy, but I believe Oklahoma has a Statute that provides for ingress/ egress and maintenance of family plots.
The State Health Department also has a standard form we used to file for location purposes.
I had a similar situation not long ago. The deed description followed a ridge line, then down a point to a road. There was an old family cemetery on the point that straddled the line you would draw if the cemetery wasn't there.
I spoke with my client and the adjoining landowners and learned that they considered the boundary line to be the fence around the cemetery. Who am I to tell them different?
What do the deeds say? Is there an excepting or reserving clause?
Perhaps a probate record will shed some light.
I recently surveyed a cemetery, entirely bounded by stone walls, for a town. A search of the deeds for the subject parcel and the abutters parcels did not call for a cemetery.
I titled the drawing "Bean Island Cemetery", by which it is known.
Just above the title block, I listed all the 28 names that were on the headstones,
and placed a note that read "I did not find a deed to the town for this cemetery".
The county register of deeds indexed the drawing by all 28 names.
While looking for corners of cemeteries, I have always found cemetery fence lines to be
a great help in finding cornerstones in a gravel road.
I hope when they bury me, I am not encroaching on anybody.
I did find 4 rods that boxed out the north half of the cemetery, not our part. I then held the fence line around the cemetery as our boundary. My client acknowledged that "the cemetery is probably open to the public", I said I agreed and stated I believe it does have some rights for ingress and egress. Nothing in the deeds...
I did not try to create any rights to it in my new metes and bounds description of our parcel.
I would think, without anything stating otherwise, it should only create an easement along with the right of ingress and egress. If they can prove abandonment they may be able to have it removed. In Georgia O.C.G.A. 36-72-3 lays out the County’s authority to preserve and protect abandoned cemeteries but does not require them to do so, with O.C.G.A. 36-72-1 et swq. providing for the permitting and removal of graves. New York probably has something similar in its code section.
Here are two interesting cases here in Georgia where the cemeteries where proved to be abandoned:
Mayes v. Simons, 8 S.E.2d 73, 189 Ga. 845 (1940), Where an owner was allowed to plow over a long abandoned cemetery
and
Walker v. Ga. Power Co., 339 S.E.2d 728, 177 Ga. App. 493 (Ct. App. 1986), Which stated, “The case most frequently acclaimed and followed, and the subject of the ALR annotation, is Heiligman v. Chambers, 338 P2d 144 (Okla. 1959), in which the Oklahoma Supreme Court held: "When a family burial plot is established, it creates an easement against the fee, and while the naked legal title will pass, it passes subject to the easement created. . . . The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority. Nicolson v. Daffin, 142 Ga. 729, 83 SE 658, LRA 1915E, 168; Trefry v. Younger, 226 Mass. 5, 114 NE 1033; 496*496 Hook v. Joyce, 94 Ky. 450, 22 SW 651, 21 LRA 96; . . . Boyd v. Ducktown Chem. & Iron Co., 19 Tenn. App. 392, 89 SW2d 360." 75 ALR2d at 589. (Emphasis supplied.)”