Client has several hundred acres, consisting of several parcels. One parcel of approximately 100 acres had a 1-1/2 acre parcel subdivided from it in 1897, and conveyed to the trustees of a church. There is a stipulation in the deed that reads, "...to have and to hold the same to them the said trustees for the use of the said Christian Church and it is agreed and covenanted by and between the said parties that at any time the said lot or land is abandoned by the said Christian Church and not used as a place of worship, then the same shall be and remain to the said (grantor), their heirs and assigns a part and parcel from which it is taken free of charge. This deed is void or illegal whenever the above described property is abandoned by the Christian Church and not used as a place of worship by the same".
The church disbanded and was torn down in the late 70's or early 80's. However, during the time that the church was there, church members and family members were interred on the property. Does the existence of the cemetery affect the reversion clause at all? The current owner of the parcel that the church tract came from wants to convey the land under the cemetery to family members of those interred there, but wants to keep other parts of the 1-1/2 acre parcel.
You need to research the West Virginia laws on the subject. In AL there is no need to convey the cemetery lands, but must allow access. This is from the Alabama Code Title 35: (WV may be similar)
(a)??Owners and lessees of private land on which a cemetery, graves, or burial sites are located shall have a duty to allow ingress and egress to the cemetery, graves, or burial sites by (1) family members, friends, or descendants of deceased persons buried there; ??(2) any cemetery plot owner; ??and (3) any person engaged in genealogical, historical, or cultural research, who has given reasonable notice to the owner of record or to the lessees, or both.
(b)(1)??The right of ingress and egress granted by this section shall be reasonable and limited to the purposes of visiting graves or burial sites, maintaining the gravesite or burial site or cemetery, or conducting genealogical, historical, or cultural research, or, in the case of a plot owner, burying a deceased person in the plot.
(2)??The owner or lessee of the land has the right to designate the frequency, hours, and duration of the access and the access route, if no traditional access route is obviously visible from a view of the property, provided that the designation is reasonable for the purposes set out above.
(c)(1)??Any person entering onto private land pursuant to this section shall be responsible for conducting himself or herself in a manner that does not damage the private land, cemetery, gravesite, or burial site, and shall be liable to the owner or lessee of the property for any damage caused as the result of his or her access.
(2)??The landowner and lessee, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, action, or cause of action arising out of the access granted pursuant to this section.
Let me add a little more info...
There is a descendant of a person buried in the cemetery that is apparently considering fighting with the landowner over the reversion. He believes the land never reverted to the original acreage and said that he would "meet with a few people every Sunday and have a church service on the property" to prevent it from doing so. The landowner isnt going to charge a fee for the property and is paying for the survey and the conveyance. However, he does want to keep a portion of the church parcel. There is no access problem. I was wondering if the existence of the cemetery affected the reversion clause.
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I am not an attorney, but if the church building was torn down more than 30 years ago and the property no longer used a "place of worship", that seems to be a prima facie case of abandonment. Sounds like a judge will end up making the call on this one.
I'd think reversion took place, but the cemetery remains
was the cemetery area abandoned, clearly and completely?
perhaps title reverted on everything else but the cemetery... and I am betting the Judge would say the same.
(yes, I know this is a troll post)
Reversionary language in a deed is tricky, I would start with a good title attorney for that one.
This seems a matter of title, not boundary. As much as we hate to hear it, title is a legal (lawyers) issue, whereas boundary location is our (land surveyors) domain. Time to get the lawyers involved. You know where the boundary is located on the ground, your client needs to know if they have title to it. Not really our realm of expertise. You are right to ask the question, but we don't like when lawyer's try to practice surveying, don't try to practice law. My $0.0199999....
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Churches and schools. Many deeds were written with similar reversionary clauses. I've seen it go both ways. Mainly because the direct heirs are too numerous and too distant to be aware of any rights they might have.
Holy Cow, post: 445992, member: 50 wrote: Mainly because the direct heirs are too numerous and too distant to be aware of any rights they might have.
But aren't most such deeds worded so the rights go to the current owner of the parent parcel?
I would read the OP to say the "assigns" get the land not taken by the cemetery. Isn't that the current owner?
DavidALee, post: 445832, member: 2179 wrote: the same shall be and remain to the said (grantor), their heirs and assigns a part and parcel from which it is taken free of charge.
Just like surveyin', "It depends."
I would say the current owner of the parent tract owns the church and cemetery. The public still has rights to access/visit the cemetery within reason. No all night beer bust on Great Grandpa's birthday with the keg sitting on his headstone.
That is just my opinion. I am just a Surveyor. This is a Title and Legal issue.
If I owned the parent tract. I would file an affidavit stating the facts about how long the church building has been gone, how long since the last church services, ect. Also state that I am claiming the land as my own based on the reversion clause and stating the rights of the public to access the cemetery.
James
