The Standing of the Dead: Solving the Problem of Abandoned Graveyards

• Author: C. Allen Shaffer
• Pages: 479-498

Page 479

Beneath those rugged elms, that yew-tree's shade, Where heaves the turf in many a mould'ring heap, Each in his narrow cell for ever laid, The rude Forefathers of the hamlet sleep. ....

Yet ev'n these bones from insult to protect Some frail memorial still erected nigh, With uncouth rhimes and shapeless sculpture deck'd, Implores the passing tribute of a sigh.

- Thomas Gray, Elegy Written in a Country Church Yard, in THE OXFORD BOOK OF ENGLISH VERSE 278, 280 (Christopher B. Ricks ed., Oxford Univ. Press 1999) (1750).

I Introduction

Beneath the elms and yews of thousands of rural communities lie abandoned and neglected burying grounds of the last two centuries. Because of the strong sense of community, faith, and tradition in rural America,¹ property law never took into account the possibility of a day when there would be both pressure to reuse cemetery land and no one left with legal standing to represent the interests of those buried there.

The same sense of continuity and community and the historical development of burying grounds in America contributed to the lack of public and private planning for the continued maintenance of these grounds. With an eye fixed on the eternal, communities and congregations never dreamed of the eventual dissolution of their churches or the scattering of their families to an opening frontier or a developing urban center.

Today, those who would protect "these bones from insult" and those who would develop or more efficiently farm the rural landscape face case law and statutory provisions that define specific rights and responsibilities, but preclude a proper forum to decide disputes. Instead, there is in each of these shaded and decaying sacred plots a stalemate between the rights of the dead and the wishes of the living. Protectors and developers alike arePage 480 able and willing to represent their viewpoints. The usual adversarial system fails because there is no one with standing to represent the dead.

This Comment first gives a brief background of the development of burying grounds in America to aid in defining exactly what type of cemeteries give rise to these issues. In the second section, the case law supporting the enduring property rights of the decedents in regard to these so-called "pioneer" cemeteries² is summarized, along with the state statutory provisions for the maintenance or removal of these pioneer cemeteries once they are classified as abandoned or neglected. In the final section, this Comment proposes statutory and judicial policy changes to break the stalemate arising from the lack of standing of distant relatives to pursue maintenance or disinterment with eventual sale. Policy changes and statewide funding measures are also recommended to relieve political and economic pressure on local officials who are mandated to provide unfunded care for these sites. By providing a court-appointed receiver for the property rights of these decedents, this Comment argues that a proper adversarial resolution can be crafted at the local level to problems of abandoned cemeteries. This Comment also briefly recounts a model of legislative attention in Wisconsin to the provision of small but stable sources of state funding to assist local officials in this effort.

II The Olive Branch Cemetery

This rural Ohio cemetery is one of thousands of places in modern America where the property rights of the dead, the sentiments of the living, and economic and political reality stand in stalemate. A brief statement of the facts regarding this property and its legal status illustrates the issues facing rural communities containing early American burial sites in every jurisdiction.

Hidden now beside a freeway overpass, this acre and its sixty graves were originally the gift of a Revolutionary War soldier to his country church.³ In the deed of gift, the donor gave to the Olive Branch Methodist Church a fee simple, with instructions that the land "be maintained forever as a temple to Jesus Christ and a burying ground for the faithful departed."⁴

For a hundred years, the Olive Branch Church and its cemetery was an important but unremarkable link in the life of its township. Like many of its counterparts,⁵ the Olive Branch Church did not keep records of the allocation of plots, and no deeds, contracts, or agreements are known toPage 481 survive for individual burial plots.⁶ The Olive Branch Church dissolved as a consequence of the depression of the 1930s, and by that time there had been fewer and fewer burials with the passage of years-as an urbanizing America drew families from the farms.⁷

Under Ohio law at the time (as is still the case in Ohio and many other states), the fee interest in the land comprising the abandoned Olive Branch Cemetery was transferred to the trustees of Washington Township, Ohio in 1932.⁸ Like most family and rural church burying grounds, there were no maintenance funds associated with the transfer,⁹ although Ohio law mandated then (as now) the continuing maintenance of the grounds by the trustees.¹⁰

In the next seventy years, the surrounding acres of land would first be transected by one of Ohio's major North-South freeways,¹¹ and the location of an important exit would pass directly next to the abandoned Olive Branch Cemetery.¹² Oil companies and land development firms would purchase the surrounding area,¹³ but the location of the cemetery- precisely where a gas station would be located at the end of the southbound exit ramp-would remain a problem. Meanwhile, the cemetery itself sunk into complete disrepair as the Township ceased even to mow the area in the 1980s, claiming rattlesnake infestation.¹⁴

The remaining monuments continue to degrade, vegetation is taking over the site, and the only sign of human attention to the site is the presence of beer cans and fast food wrappers.¹⁵ Those trying to preserve the site-distant relatives living in other areas-have found that they lackPage 482 legal standing to challenge the trustees' performance.¹⁶ As collateral relatives of the third generation past the decedents, Ohio law does not provide them standing¹⁷ and as non-residents of the Township they would find it difficult to prove the requisite nexus of interest to file for mandamus.¹⁸

Although Ohio law mandates that township trustees maintain such cemeteries,¹⁹ it provides no funding to do so.²⁰ The Washington Township trustees would have to levy a special tax on their own initiative (which is provided for in the statute to maintain burial grounds),²¹ which would certainly guarantee their removal at the next election in this far from affluent rural area.

Like so many thousands of similar sites, the Olive Branch Cemetery and its cargo of pioneer graves continues to sink under the realities of modern society, as the living struggle to find a method of bringing the various interests to a forum of resolution. But of the many types of burial places in America, only one type presents this problem. The next section briefly defines the pioneer cemetery, which is so likely to be neglected or abandoned today.

III Family, Community, and Churchyard Burials in America

A rustic cemetery . . . where the avarice of the living confines within narrow limits the . . . dead; where the confused medley of graves seems like the wild arrangement of some awful convulsion of the earth.²²

Burials in early America took place in four places: by pioneers in isolated, unorganized places on the true frontier; on a family farm, sometimes in a multifamily burying ground; in churchyards, perhaps open to public as well as church members; and for the poor, unknown or criminal, in "potter's fields."²³ Taken together, these sites are the most likely to be neglected, abandoned, or suddenly rediscovered during construction or farming.

Page 483

Modern writers (and this Comment) tend to speak of these four types of burying grounds under the one phrase "pioneer cemeteries,"²⁴ although these burials actually concern different types of land and occurred over a 200-year span of time.

A Graves of the True "Pioneers"

The graves of the true American pioneers are often unmarked and solitary, and they can turn up almost anywhere-reflecting the practical problem of needing to bury the dead where they died.²⁵ Sometimes, these burials were made near or within established Native American burial places,²⁶ creating some confusion for those attempting to follow the Native American Graves and Relics Repatriation Act.²⁷

Because of the extreme circumstances under which these deaths and burials occurred, it was not expected that true pioneer burial sites would be protected or maintained, and in fact they were often left unmarked.²⁸These sites have not been the subject of much litigation, except in states like Nebraska, where a public controversy arose over the treatment of the graves of Nebraska's first settlers.²⁹ This controversy ultimately resulted in the passage of Nebraska's Unmarked Burial Sites and Skeletal Remains Protection Act (Reburial Act),³⁰ which applies many of the same strict regulations to these graves that are contained in the Native American Act.³¹

B Domestic Burying Grounds

Wherever there is a solitary dwelling, there is a domestic burying place,...