GET OFF MY LAND - IT'S PRIVATE PROPERTY!

By: Paul M. Kankula - NN8NN
Seneca, SC
8-Oct-2002 C998.txt

Do descendants of deceased persons have a right to visit and maintain family 
graves which are located on private land?  Per Mr. Kenneth P. Woodington, Senior 
Assistant, Office of the South Carolina Attorney General, the answer is a 
qualified YES, as will be seen herein.

For the purpose of this opinion, it is assumed first, that the landowner or his 
predecessors in title actually dedicated the property for use as a cemetery.  
Such a dedication could occur expressly, such as in a deed, or impliedly, as 
where the landowner or his predecessor in title acquiesced in the use of the 
family burial ground.

      (The term "dedication" is used herein in a non technical sense, that is,  
       not limited strictly to such formal dedications as occur when a developer 
       opens streets or parks to the public.)

Secondly, it is assumed that the cemetery has not been legally abandoned.  Under 
the current state of the law in South Carolina, it is almost a practical 
impossibility for a cemetery to be deemed abandoned unless the graves themselves 
are moved, although a statutory procedure for the removal of graves does exist.

      (Absent some positive evidence of abandonment, (see S.C. Code of Laws, 
      Title 27 Chapter 43, Removal of Abandoned Cemeteries, 
      http:www.scstatehouse.net), a family burying ground probably cannot be 
      deemed abandoned until the graves are actually removed.  Removal of the 
      graves normally requires approval by the county or municipal government 
      and thirty days' notice to any known relatives of the deceased persons 
      (see SC 27-43-10))

As a third and final assumption, it almost goes without saying that the location 
of the cemetery is actually known.  While we have found no case addressing the 
point, it is likely that a person who merely suspects the existence of a 
cemetery on someone's property would need to persuade either the landowner or if 
necessary, a court, that there are reasonable grounds for believing a cemetery 
might be present on the site.

The point of making all these assumptions is to indicate that in some cases, the 
real issue may not concern the existence of a right to visit a known burying 
ground, but instead may involve disputes the matters listed above: whether the 
cemetery even exist on the site, whether a dedication to burial uses has ever 
been made, or whether the cemetery has been abandoned.  These issues can only be 
resolved on a case-by-case basis.

If the answers to all the issues above are in a given situation, however, there 
is little question that relatives of the deceased persons have a right in the 
nature of an easement to visit and care for the graves.  As one court has held:

      (A cemetery is a place not only for the burial of the dead, but for an 
      expression of love and respect by the living for the dead.  Hence there 
      must be accorded to (living interested persons) not only the right of 
      burial but also the right to visit, maintain and beautify the graves of 
      relatives interred therein....)

In summary, there is little question that the descendants of persons in a 
cemetery or private burial ground have a right to visit and maintain the graves, 
provided that their crossing of the lands of others to do so is done in a 
reasonable manner and at reasonable times.  Obviously, the best course of action 
for availing oneself of such a right would be to try to work out an arrangement 
with the landowner as to the times of visits, the route to be taken to get to 
the cemetery, etc.  The disputes which arise even when there is a clear right to 
visit the cemetery tend to involve persons trying to visit the cemetery in ways 
which are unnecessarily offensive to the landowner.

This is only a general statement of the law.  It does not and cannot address the 
many specific questions which will arise over whether individual cemeteries or 
family burial grounds exist, were dedicated to burial uses, or have been 
abandoned.

What recourse is available in cases where citizens report that local law 
enforcement officials will not enforce S.C. Code of Laws, Title 16,  Chapter 17-
600, Offenses Against Public Policy, (http:www.scstatehouse.net), which provides 
for criminal penalties for various acts which constitute destruction or 
desecration of human remains or repositories thereof?  Mr. Woodington reports in 
his informal opinion that he has no knowledge of the facts of any specific case 
in which this has occurred, but would advise the family members to bring civil 
actions for trespass and even for damages (if such can be proven) when 
cemeteries are being destroyed or desecrated.

1) 19-Sep-2002  The Greenville News/Associated Press in Columbia, SC has 
reported that the Bostick and Tompkins Funeral Home has been charged with 
damaging grave sites at the Taylor Cemetery while cutting timber and doing 
landscaping.  The Richland County Sheriff's Department says that owner Willie 
Tompkins has been jailed and charged with willful intent.  The prosecutor's 
office issued a letter to Tompkins warning the company to "cease and desist any 
conduct which furthers the destruction of graves."  Authorities said the 
destruction continued.  Seventeen victims have complained about Tompkins actions 
at the cemetery.  Mr. Tompkins said that he deeply regrets what happened because 
he was working to make the cemetery better.  Unfortunately, he hired some 
contractors who did a poor job.  

2) 18-Oct-2002 The Seneca Daily Journal/Greenville (AP) has reported that a 
Greenville couple has been convicted of damaging graves and taking body parts 
from a cemetery in Greer.  Douglas F. King, 27, was convicted of malicious 
damage to property over $10,000, conspiracy and two counts each of desecration 
of a human burial ground.  King was sentenced to 15 years in prison by Circuit 
Judge John Kittredge.