A statute prohibiting landowners from blocking access to cemeteries located on their property does not apply to other landowners whose property only has a “traditional access route” to the cemetery.
A 59-acre parcel of land contains a 47-acre parcel that is the Wintergreen Family Cemetery, which the Harris and Coleman families have used for more than 200 years. The parcel also contains the family home. Eventually, 12 acres of the parcel were subdivided.
“Over the years, various family members and descendants of deceased persons buried there have visited the cemetery. Until 2013 or 2014, visitors accessed the cemetery via the ancestral home’s driveway and along the rear of the home.
“Accessing the cemetery via this route required visitors to enter onto and cross the two parcels of land now owned by Jacobs and Brink before reaching the 47-acre tract on which the cemetery is located.
“Around 2013 or 2014, Jacobs and Brink, who were then leasing one of the two smaller tracts, began refusing access over their property to those wishing to visit the cemetery.
“Thereafter, certain descendants wishing to access the cemetery began using another route to access the site, passing through the 47-acre tract from the east. This ‘east gate route’ does not cross over either of the two smaller parcels of land owned by Jacobs and Brink, only the 47-acre tract on which the cemetery is located.
“The trial court found that the original path through the ancestral home’s driveway is a traditional access route pursuant to Code § 57-27.1. Nevertheless, it declined to grant appellants the declaratory and injunctive relief they sought, holding that: ‘The cemetery access statute, given its plain meaning, obligates only “[o]wners of private property on which a cemetery or graves are located” to allow ingress and egress to the cemetery.
“‘There is nothing in the statute that would provide a similar obligation to owners of adjoining properties on which the cemetery or graves are not located. … Code § 57-27.1 does not give the family members and descendants of deceased persons buried in the cemetery the right to cross the two tracts of land owned by Jacobs and Brink.’ …
“Appellants appeal only the trial court’s interpretation of Code § 57-27.1, arguing that the duties and prohibitions placed on landowners by the statute extend to ‘all landowners of property containing a traditional access route to a cemetery,’ without limitation or regard to whether the cemetery or gravesite is actually located on the landowner’s property.”
“The present version of Code § 57-27.1(A) states: ‘Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves [to family members and others]. …
“‘No landowner shall erect a wall, fence or other structure or device that prevents ingress and egress to the cemetery or grave, unless the wall, fence or other structure or device has a gate or other means by which ingress and egress can be accomplished by persons specified in this subsection.’ …
“Given the plain meaning of the words of the statute, Code § 57-27.1 applies only to landowners on whose land a cemetery or graves are located. …
“[A]s appellees point out, the first sentence of Code § 57-27.1, ‘[o]wners of private property on which a cemetery or graves are located shall have a duty …’ clearly illustrates that the statute only applies to landowners of property on which a cemetery or graves are actually located.
“The plain meaning of the statute favors appellees’ interpretation. Because the two smaller parcels here do not have a cemetery or graves located on them, Jacobs and Brink are not ‘landowners’ within the meaning of the statute and thus are not subject to the duty to allow ingress and egress that the statute imposes.
“To hold otherwise would require us to rewrite the statute. The trial court’s construction gives effect to the General Assembly’s intent without causing the Court to usurp the legislature’s authority to enact statutes. …
“[T]he narrow interpretation advanced by the appellees neither offends logic, nor renders any part of the statute meaningless.”
Wintergreen Homestead, et al. v. Pennington, et al., Record No. 0136-22-3, Nov. 29, 2022. CAV (Fulton III). From the Circuit Court of Nelson County (Watson). Nancy R. Schlichting for appellants. Heather H. Goodwin for appellees. VLW 022-7-543, 17 pp.