All true, Langdon, but all should remember that in the last analysis, no matter what a court says, landowners sometimes stand at the gate with a shotgun, in which case, we often have to seek enforcement of the rulings by the sheriff, bailiff, or other appropriate member of the government. Remember too that those procedures vary from state to state, even though all end up in a courtroom when all else fails. As I mentioned, the Jack Daniels, candy, and a Bible may avoid all of that.
The law very often is not exercised the way the laws, regulations and rules intended.
Genealogy without documentation is nothing.
Paul Drake JD
Genealogist & Author
<www.DrakesBooks.com>
----- Original Message -----
From: Langdon Hagen-Long
To: [log in to unmask]
Sent: Sunday, April 09, 2006 4:29 PM
Subject: Re: [VA-ROOTS] DNA
If access to a private cemetery is denied by the owner, the genealogist has to go [after negotiating, I hope] to the Clerk of Circuit Court, very briefly explain the problem, ask to be put on the docket, fill out a form, which includes a request for reimbursement of expenses, and pay about $35. Depending on the court, the clerk will probably offer the genealogist several choices for a court date, and then set the date. The court takes care of sending subpoenas. The genealogist has to appear in court, and explain the denial of access to a judge. The burden of proving that the genealogist's request is unreasonable is on the cemetery owner. The owner would have to come up with a very good reason for denying access, such as: "he wanted to come at 3:00 AM with 50 people". The judge can do "what is fair", including ordering reimbursement for expenses, if it was requested. If he owner states that the genealogist was a real jerk when *demanding* access, and the judge
believes him, the judge may not feel like ordering compensation, which is a matter of his discretion. [civility counts!]
Law defines "reasonable" as what a reasonable man would consider normal behavior, such as entering a cemetery for the purpose of examining graves, recording dates, saying a prayer, leaving flowers, taking pictures, maintaining the cemetery, etc. But this law only requires that the *access* be reasonable, not the *reason* for visiting. Asking to bring 50 people at 3:00 AM, or even 6:00 AM may not be a reasonable access. Requesting a noon visit, for the purpose of research is reasonable. The law does not require a genealogist to explain his reasons for visiting to the cemetery owner, although it would certainly be advantageous and reasonable to do so. The law already states that anything falling under "visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research" falls within the rights allowed. The genealogist only has to give, "reasonable notice", in advance. Again, "reasonable" is whatever an average person would consider right. [ie
How much advance notice would you want?] Legally, 24 hours has been considered reasonable, even though courtesy required more. The landowner does not have to be reasonable. He can say, "Come back in 10 months, and I'll give you an hour", which is within his rights. If you plan to drive on a road on private property, you must have the owners *written permission*, since driving is excluded as a right. The landowner is immune from "slip and fall" suits, but is not immune from prosecution or law suits for misbehavior, which is explicitly explained in paragraph a.
A homeowner or cemetery does not have the authority to allow a genealogist or scientist to disturb a grave. Graves are under the authority of city, county, and state government. Only the government can issue a permit for something like probing for DNA. In fact, beware - a permit is usually needed for even repair, planting, or painting a fence, in a city or county cemetery. The cost of permits for this type of activity, is still about $25, I think, but does not cover digging or probing graves]. A congenial property owner might grant a genealogist permission to dig, not being aware that he doesn't have the right to grant that permission.
I think most problems can be solved by the Common Sense Rule: Be *Reasonable* and then think about how you would want to be treated - which usually requires going beyond *reasonable* and what is required by law. Offering the owner a history of the land, or offering to rake the area will work better than demanding access.
Langdon Hagen-Long
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