There are times when we are proud of state from which we hail, there are times we are not, and there are times when it’s a mixed bag. This past August a suit was filed in my home state, Pennsylvania, concerning the visiting of a churchyard cemetery. According to the Reading Eagle, Paul and Jean Dovin acquired a small parcel of land along Twin Valley Road that contained an 18th century stone church, and now are refusing to let loved one’s visit their dead. In fact, the suit only allows for family members to enter the property in order to exhume the bodies to another site.
The Dovin’s have been calling “trespass” on visitors like Barbra Miller, a mother whose 3-year-old son is buried in the cemetery. Is it trespass to visit the graves of the lost? It seems the legal issues here are built on a multitude of misunderstandings. The Dovin’s property is privately owned, but they purchased the land without the knowledge that the cemetery was still functioning. Additionally, the previous owners of the cemetery were selling plots without a license. So begs the question: is lack of notice combined with illegal plot exchange grounds for excluding family members from visiting graves?
Answering the question is much more difficult than asking it. It boils down to 3 parts the licensing, the private property, and the human remains. The licensing is the clear cut, under the Pennsylvania Burial Ground Act individuals operating as cemeteries i.e. selling grave sites must be licensed through the state's Real Estate Commission as they are involved in buying and selling deeds. It is no surprise the Dovins were unaware of the operation of the cemetery because the state of Pennsylvania was unaware. Is that enough though? Can past transgressions allow for the discounting of the current victims, family and friends, that just want to honor the dead? Should they have the right to visit their dead regardless?
It certainly isn’t that simple. While it is understandable that the Dovins were surprised to learn the cemetery was still functioning, they were aware the property included a cemetery— and shouldn’t that put them on per se notice of visitors? Private property should always be respected, but regardless of its stated ownership status, don’t cemeteries function as quasi-private property more so than traditional private property? The term quasi is malleable and difficult to define, but that is exactly what allows it to fit here so well. The land is privately owned, but bears with it an expectation and acceptance that loved ones will want to visit the graves of the deceased, regardless of past licensure issues or current licensure standing.
The term quasi-private property is also consistent with how the common law views human remains—not as property. The problem is that the remains eventually decompose into the real property. The question then remains (no pun intended), when if at all do human remains cease to be human remains and therefore once again can be considered real property for purposes of exclusion? One answer to this question is in the suit itself—the exhuming exception. Families are able to enter the cemetery to exhume loved one’s bodies implying that some type of human remains, at least in the law’s eyes, are still present. Making it then unclear if the Dovins have the right to force the remains off their property, not because they own the remains, but because they own the land on which the remains reside or does the per se notice of owning land with a cemetery trump the inclination to “clean house” regardless of if the private property right of exclusion exists?
The only thing that is clear is the need for clarity. While everyone, accept litigators maybe, prefer to handle things outside the courtroom the one good we can hope for from this suit is clarification on these conflicting questions. And may be some peace for the loved ones and land owners alike would be nice in the process as well.