This subject has been discussed here several times before over the
years. As one of several owners of a family cemetery in VA which is
surrounded by another landowner's property, I can shed a little light on
the subject, having researched it extensively. Also, I have a current
lawsuit pending re: the exact boundaries of the cemetery property.
However, I am not a lawyer, though I have consulted several and have two
involved in my current case. I have also studied the existing case law
on the subject, which is unfortunately relatively little.

In VA, the statute says that cemeteries are a 'protected' entity.
However, unless the cemetery is excepted from conveyance when the
surrounding property is sold, the title to the cemetery is held by the
current property owner, and all access is controlled by that landowner,
unless provisions are made in the deed(s) for a specific easement over
the property for family descendants.

If you are lucky and your cemetery happens to fall inside the bounds of
state property (one of mine does), then you can register the cemetery
with the state, and it is very protected. Even from you. Joking aside,
your rights to do anything with the cemetery are limited depending on
the use the land is being put to. A wildlife management area, for
instance, prohibits digging into the earth more than a depth of 8" (or
maybe 6). So any true excavation for archeology purposes is not allowed,
except for shallow tests for buried gravestones.

Enforcement in VA of the 'protection' of cemeteries -not- on state
property is nil, especially if the family members have retained no
specific rights at the time of conveyance of the property from the
possession of the family. Technically, a current landowner cannot
destroy a cemetery outright, but no one in VA has been prosecuted for
letting one go 'naturally' to ruin. I even know of cases of farmers who
removed stones so they could plow the field, because the stones were in
their way. Who is going to know what happened?

I believe the law allows that if a historical society takes an interest
in the cemetery that there is some provision for access, but
unfortunately, this doesn't extend to family members in and of
themselves, unless the easement and/or title have been explicitly
retained when the property conveyed out of the family. And, if the
family doesn't maintain a constant interest in the cemetery over time,
even those rights may be forfeited. My attorney says that the rights of
historical societies to access cemeteries has not been tested in the
courts and that this may not hold up if so tested. (In other words,
don't count on it.)

In my case, the cemetery itself has been excluded from conveyance since
the 1820's, and when the surrounding property actually was sold out of
the family in the 1940's, my uncle included the whole acre the cemetery
sits on in the exception to the conveyance - BUT HE NEGLECTED TO GET IT
SURVEYED. (A lesson for current family farm owners!!) My pending case
involves getting the court to approve the survey I had done of the acre
a few years ago, to establish exact boundaries, for the purpose of the
cemetery's protection from the current landowner's development of the
property. If my family did not actually own the land the cemetery is on,
we would have no rights in this regard. However, since we do, and since
the acre is an 'island' of real estate, we also have an implied easement
- because of real estate law, not because of cemetery law. (VA law
doesn't allow "islands" of real estate to exist without implied
easements).

I hope this helps, though it isn't encouraging for most situations. If
you have a landowner who is sympathetic to your situation, you might
approach them for obtaining permanent easement rights to the cemetery.
This may involve a lot of money, since this limits the potential future
use of the property. Don't be surprised if you are sent packing.

-Nancy Upshaw

To subscribe, change options, or unsubscribe, please see the instructions
at http://listlva.lib.va.us/archives/va-hist.html