Grave Matters: The Ancient Rights of the Graveyard

Abstract

Descendants of people buried in cemeteries on private property have a common law right to access that property to visit the cemetery. That right, which is akin to an implied easement in gross, is recognized by statute in about a quarter of states and by case law in many others. Grave Matters explores the origins, nature, and scope of the little-recognized right and its implications for property theory. It discusses the right as part of well-established property doctrine and its relationship to recent takings cases, as well as the corollary graveyard right against desecration and the correlative right of communities to relocate cemeteries. The right of access, which traces its roots to the early the nineteenth-century, is important because it is one of the few implied rights of access to private property. It limits, by implication, the right to exclude, which is at the core of property rights. Thus, it offers a way of getting access to property without facing a takings claim. Moreover, the right is important because it reminds us that there are limits of the right of exclusion, which were recognized at common law. The right of relocation further illustrates the careful balancing of property rights with the community's right. Thus, the graveyard rights together emerge as vestiges of the nineteenth-century's consideration of community and property. A final section suggests the importance of the right of access for recent discussion about reparations for the era of slavery, for the right of access provides a property right (an easement) in descendants of slaves buried on plantations to access those plantations. The property held by descendants provides important symbolic connections between the past and present and offers hope of a lawsuit for reparations that is not barred by the statute of limitations.