Digging for Answers - April 9, 2009

Cemeteries & Laws

by Randy Seaver

Welcome to the Digging for Answers column on the Graveyard Rabbit Online Journal.

This column will depend on your submission of questions about cemeteries, gravestones, burial practices, and other topics that concern a Graveyard Rabbit (other than where his next carrot is coming from!). So please send some questions to the editor, who will pass them on and keep the columnist hopping.

Our first question comes from Thomas (yes, that Thomas), who inquires:

How do you find out the local laws for accessing cemeteries that are off the beaten path and perhaps on private property, or over which one has to traverse private property? Laws differ by state and by locality. Is there a website?

Thomas asked two questions here, and I'll answer the second question first: No, there is no comprehensive web site that catalogs all of the local, county, or state laws concerning cemetery access, or any other graveyard-related issue. However, there are learned treatises on the subject by attorneys - see Grave Matters:The Ancient Rites of the Graveyard by Alfred F. Brophy This is an abstract but you can download the entire paper from several repositories at the link.

The first question can be answered simply, and then I will provide some examples. Every state has laws that define cemetery access provisions. How do you find them? I used the Google search engine to find some of them. I used "cemetery access property laws" as search terms. For a specific state, add the state to the search terms (i.e., "cemetery access property laws Illinois").

Following are some examples by state:

1) For Virginia (partial below):

§ 57-27.1. Access to cemeteries located on private property; cause of action for injunctive relief; applicability.

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; and (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 a 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.

2) For Illinois:

The Illinois Historic Cemetery Preservation site does not provide the Illinois statutes per se, but does provide a PDF "Stones and Statutes: Laws Governing Illinois Cemeteries." This document includes term definitions; federal programs; state government assistance; county, township, or municipality obligations; and a list of applicable state laws with a link to the Illinois State Code sections (select “Compiled Statutes”). The Illinois Historic Cemetery Preservation site also provides a Frequently Asked Questions page. The question about a cemetery on private property is answered by:

The cemetery where my family is buried is now owned by someone else. Do I have legal rights to the cemetery?

You should consult with a lawyer on this matter. Some states have ingress and egress laws allowing for descendents and genealogists to visit abandoned cemeteries. However, there is no such law in Illinois.

3) For New York:

The Saving Graves - New York site has a link to the New York state regulations governing cemeteries. The Saving Graves site says:

According to the New York State Cemeteries Division, there are no laws or regulation governing burial plots or sites that are on private property. There are no New York State laws or regulation against a private property owner removing headstones and using the property for any other use that suited the owner. In the event that a grave should be disturbed in any of the 4000+ cemeteries which are classified as municipal, religious, family or private cemeteries, no laws or regulation has been broken and it is only a matter for health environment issues.

4) For California:

I could find no helpful information about access to cemeteries on private property in California, with the exception of a guarantee to access to Native American graveyards. General information can be found at The California Business and Professional Code - Cemetery Law.

As you can see, different states have different sets of laws controlling cemeteries, private property access, etc., based on the specific needs of the state involved.

For those who want to find graves on private property, perhaps the best advice is:

Find, read and understand the law of your state concerning access to private property. Find out the owner of the property at issue by contacting the county tax assessor or deed recorder. Contact the property owner and courteously ask for permission to access the graves on the property and tell them why you wish to visit them. If access is granted, treat the property with respect, cooperate with and thank the property owner for being helpful.