By Jeanie Hale Lowe
Printed in Illinois State Genealogical Society Quarterly, Vol. 36, No. 4
..It’s my property and I’ll tell you if and when you can cross it to get to that cemetery.” Says the landowner of property that surrounds a cemetery.
In response the descendant says, “I’ll go to the grave of my ancestors whenever I want to and you can’t stop me from paying my respects.”
These are two strongly conflicting sides to a highly emotional situation. A similar situation occurred in Williamson County this past summer. Monty Tyner, whose ancestors are buried in Wilson Cemetery and the property owners, Elizabeth Bowman was willing to grant limited access but feared that damage would be done to the dirt roadway and was concerned about liability. Tyner sought to visit the graves of his ancestors (including his brother, uncle and grandparents) and clean the immediate grounds around the stones as he had done for many years prior. The police were called.
Generally researchers and property owners work out an agreement and access is not limited or denied. However, the Wilson Cemetery situation is not unique. It’s happening more and more.
DOES ILLINOIS LAW PROTECT THE RIGHTS OF ACCESS TO CEMETERIES?
According to the Illinois General Assembly’s Legislative Research Unit, there is no Illinois statue granting descendants or researchers a right to cross private land to visit cemeteries. The right of access to burial grounds by a descendant arises from common law stated in decisions of the Illinois Supreme Court – not from statutes. There is a noticeable absence of statutes on small cemeteries no longer used for burials – whether public or private. A clear, unambiguous statutory right of access might be enforced by the sheriff’s office. But in the absence of such a statute, enforcement of rights of access or other common-law rules against opposition or obstruction by surrounding landowners usually requires suing them, and thus may be beyond the means of ability of relatives of persons buried in these cemeteries.
The situation of the descendant wanting to visit the grave of an ancestor against the wishes of a property owner whose land surrounds the cemetery may not occur often but it can be very frustration. However, property owners fear liability issues from allowing people to cross their property.
CEMETERY ACCESS CASES
The main case on this issue probably is Smith v. Ladage (1947), addressing title to a burial ground in Divernon Township in Sangamon County. Its first burial was in 1848. In 1865 the owners conveyed the land to two persons as trustees of the Brush Creek Burying Ground. Interments continued until 1922. In 1943 the electors at the annual Divernon Township meeting voted to vacate the cemetery, transfer title to the Logan Ladage family, and remove the bodies to another location. Relatives of persons buried in the cemetery sued to prevent removal. The Illinois Supreme Court noted that the Cemetery Removal Act required the town board to find good cause for removal. The court said the “mere desire of an adjoining landowner to remove an objectionable sight of weeds and brush, and to convert the burial ground into a cornfield is not sufficient to support [that] action.” The Supreme Court describe the right of the public and relatives of the dead as an “easement” that is subject to reasonable by-laws of the cemetery.
It added that: plaintiffs having relatives buried in the cemetery have a right to enter on such cemetery to care for the graves of the deceased relatives, that such right is an easement of indefinite duration and is such a freehold estate as to authorize a direct appeal.
The court concluded that the cemetery had not been abandoned, and the plaintiffs had not lost their right to seek an injunction against the Ladage family. It ordered the circuit court to issue an injunction against removal.
In reaching that decision the Illinois Supreme Court relied on its earlier decision Brown v. Hill (1918). That case arose when trustees of a church burial ground in Edwards County sought to replat the cemetery and rearrange the burial markers and other things to conform to the new platting. A trial court ordered the trustees to cease the replatting and maintain the cemetery arrangement as it has been. The Illinois Supreme said that a buyer of a cemetery lot may not acquire title to the plot (only an easement): but the buyer or buyer’s relatives have a property right in the lots which can be enforced by injunction “so long as the cemetery continues to be used for that purpose.” It added that the right to bury includes a right to erect grave markers and to protect them from spoliation – rights which an equity court would enforce. The court held that the trustees could not replat the part of the cemetery containing graves, but they could replat unused parts of the cemetery and sell those lots.
In 1957 the Illinois Supreme Court held in Stevenson v. Meyer that a dirt road used by the public as the only means of access to a cemetery had become a public road before an adjoining landowner erected a gate across the road and piled brush and other debris across it. The court cited a statute saying that any road used adversely and continuously by the public for at least 15 years becomes a public road, giving the public a prescriptive easement to use it. The court upheld a trial court order prohibiting the adjoining landowner from obstructing the road way.
Little is said about abandoned cemeteries. Counties, townships, and municipalities are authorized (but not required) to enter abandoned cemeteries and make them orderly. An abandoned cemetery is defined for this purpose as an area of land containing more than 6 places of land or currently functioning cemetery objects to entry and (1) which has had no interments in the last three years or (2) for which there has been inadequate maintenance for at least six months.
WHO REGULATES CEMETERIES IN ILLINOIS?
Four state agencies have some jurisdiction over cemeteries in Illinois. The Illinois Department of Public Health sets minimum requirements for disposition of human remains, and that permits for burials be issued by funeral directors of local health department offices and recorded by local registrars. The Department of Natural Resources prohibits surface coal mining within 100 feet of a cemetery. The Department of Insurance regulates pre-need funeral contracts and other burial prearrangements funded by life insurance or annuity contracts.
The Comptroller regulates cemetery finance under the Cemetery Care Act. An authority operation any private cemetery that seeks to receive care funds must register with the Comptroller. Each registering authority must identify the cemetery as fraternal, municipal, state, federal, religious, or family burial ground. Privately owned and operated cemetery authorities must be licensed before they can accept care funds. A cemetery must submit a fidelity bond to be allowed to hold more than $15,000 in care funds. Licensed cemetery authorities must also file annual reports with the Comptroller listing investments, income, expenditures, and numbers of interments in the last year.
The Comptroller has investigative and enforcement powers over cemetery care funds, and can investigate any licensed cemetery business with respect to its care fund. Licensees with over $250,000 in care funds must be examined annually. The Comptroller can revoke licenses of cemeteries that fail to file annual reports or violate other portions of the Act. The Comptroller can levy civil penalties up to $5,000 for intentional misuse of care funds for personal gain.
CEMETERY LAWS IN OTHER STATES
Missouri Law. If an abandoned family cemetery or private burying ground has no public ingress or egress, the law allows a person wanting to visit it a right of “reasonable” ingress during “reasonable” hours. The law does not say what is reasonable; but it says the sheriff or other law enforcement officer of the county is to enforce the access rights. A provision applying to that section says an abandoned family cemetery or private burying ground includes burying grounds that have not been deeded to the public and in which no body has been buried for at least 25 years.
Virginia law allows owners of land adjoining cemeteries to designate the frequency of access, hours, and duration of visits through their land. A vehicle may not be driven across private land to visit a cemetery unless there is an existing roadway or right-of-way and the visitor has the owner’s written permission to use the roadway.
Indiana law requires a landowner to allow access for family member and descendants of persons buried in a cemetery on one day per year, which must be agreed on the family and owner.
New Hampshire requires visitors seeking temporary entry to cemeteries to apply in writing to the local mayor or selectmen, stating the reason for seeking access and the period of time the request is for. The applicant also must notify the landowner in writing. The mayor or selectmen may then issue a permit stating when and where the applicant may have access.
North Carolina law includes a process for visitors unable to get permission from landowners to petition the clerk of court for an order allowing entrance. The clerk may specify dates, hours, duration, and routes into and out of the property.
Arkansas prohibits a landowner from constructing a fence to enclose a cemetery unless a gate and access road are provided. The law does not apply to cemeteries that have not been used for burials in more than 25 years, or for which there has been no access road for over 30 years.
Source: Legislative Research Unit, Illinois General Assembly