Many of us think of cemeteries as well-groomed parks with regular visitors walking among long rows of headstones. But if you have family roots in a rural area, your ancestors might not have a plot behind the gates of Peaceful Acres. Instead, they might be resting in what was once your family’s “back yard” – perhaps acknowledged by a few markers in the middle of a farm or woodland. Problematically though, your family might not own the land anymore and maybe hasn’t owned it for decades or even centuries. If that’s the case, how can you visit Great Grandpa?
Sometimes, a relative may have the benefit of an express easement that was negotiated to allow visitation of the cemetery. However, in many instances, there is no document in the chain of title that entitles the relative to come upon the property. Of course, a polite request to an accommodating owner might do the trick to gain access to the cemetery. But if that doesn’t work, a little-known provision of North Carolina law provides a solution.
N.C. General Statute 65-102 gives cemetery visitation rights to the following categories of people: (1) a descendant of the person whose remains are reasonably believed to be interred in the grave or abandoned public cemetery; (2) a descendant’s designee; (3) any other person who has a special personal interest in the grave or abandoned public cemetery. If you fall into one of these categories and the landowner will not agree to allow you on the land, the court can grant you access. By filing a “special proceeding” before the Clerk of Superior Court, a petitioner can obtain an order that allows the petitioner “to enter the property to discover, restore, maintain, or visit the grave or abandoned public cemetery.”
Notably, the petitioner does not need indisputable proof that the cemetery exists (since, without access to the land, such proof might be difficult to collect). She only needs to show a “reasonable ground to believe” that the cemetery is located on the property or that it is “reasonably necessary to enter or cross the landowners’s property to reach the grave.” Further, the petitioner must show that she or her designee “is a descendant of the deceased” or that the petitioner “has a legitimate historical, genealogical, or governmental interest in the grave or abandoned public cemetery.” Finally, the entry on the property cannot “unreasonably interfere with the enjoyment of the property by the landowner.”
While a landowner might be surprised to learn that a stranger can come onto their property without permission, the law creates specific safeguards to ensure that the privilege is not abused. For instance, the court can specify the dates and hours of entry or restrict the petitioner to a designated “reasonable route” to the cemetery.
The North Carolina appellate courts have published little “case law” to interpret this statute. Therefore, there is ample room in the law to argue about what sort of access is “reasonable.” But owners of land that includes old family cemeteries should be aware their “private” property may not be as private as they thought. The descendants of the people buried in those cemeteries can exercise a meaningful privilege, if they know the law.
Elliot Fus has served as town attorney for several North Carolina municipalities and has represented private parties in land use matters. He is a member of the N.C. Association of Municipal Attorneys and leads the firm’s Litigation Practice Group.
