Virginia Lawyers Weekly VA Lawyers Weekly
The descendants of persons buried in a cemetery on private property who sought to establish a statutory right to use a “traditional access route” across adjacent parcels of land have lost in the Court of Appeals of Virginia.
The appellants argued that Virginia Code § 57-27.1, known as the “cemetery access statute,” prohibits landowners from blocking traditional access routes to a cemetery regardless of whether any graves are located on the property.
But the court disagreed.
“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,” Judge Junius P. Fulton III wrote for the panel.
Fulton was joined by Senior Judge William G. Petty and Judge Daniel E. Ortiz in Wintergreen Homestead, et al. v. Pennington, et al. (VLW 022-7-543).
Access denied
In 1992, a 59-acre tract of land was conveyed by will to a testator’s four children. The next year, the siblings partitioned the land into a 47-acre parcel conveyed to three of the children and a 12-acre parcel conveyed to the fourth.
The Wintergreen Family Cemetery and ancestral home is located on the larger parcel. Historically, visitors could access the cemetery via the driveway and along the rear of the house, which also required entry across the 12-acre parcel.
The owner of the 12-acre parcel subdivided it into two parcels and leased them both. Around 2013 or 2014, the lessees began refusing access over their property to individuals wishing to visit the cemetery.
Although another route to the cemetery — the “east gate route” — didn’t cross over either of the two smaller parcels, the descendants of people buried there sought declaratory and injunctive relief in the Nelson County Circuit Court.
Specifically, the descendants demanded confirmation that the path across the adjacent parcels was a “traditional access route” pursuant to Virginia’s cemetery access statute which gave them a right to unhindered use of the path to access their ancestors’ graves.
The trial judge found the original path through the ancestral home’s driveway was a traditional access route but declined to grant the descendants the declaratory and injunctive relief they sought.
The lower court said “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.”
The descendants appealed.
An ‘absurd result’
The appellants argued that the duties and prohibitions the cemetery access statute placed on landowners extended to all landowners of property containing a traditional access route to a cemetery, regardless of where the cemetery was located.
But the appellees maintained the legislature intended only to protect the ability of descendants to access familial burial sites, not the means by which they access those sites.
Both sides claimed that legislative intent supported their argument and that the counter argument would lead to an absurd result.
The current 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.
The appellants said the trial court put too much emphasis on the first words of the section but overlooked the prohibition on preventing access without offering some other means to enter the cemetery.
“[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.”
— Judge Junius P. Fulton III
However, “as 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,” Fulton wrote.
Here, because the two smaller parcels didn’t have a cemetery or graves located on them, the lessees weren’t landowners within the meaning of the statute and therefore weren’t subject to the duty to allow ingress and egress that the statute imposes.
“To hold otherwise would require us to rewrite the statute,” the judge explained. “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.”
Further, this interpretation “can easily be harmonized with the later language upon which appellants seize, that ‘[t]he landowner may designate the frequency of access, hours and duration of access and the access route if no traditional access route is obviously visible by a view of the property.’”
Fulton rejected the argument “that the statute, in all cases, protects the means by which those family members or descendants may access the cemetery or graveyard without limitation. Here, the appellants may access the cemetery via the east gate route.”
The court was unpersuaded by the appellants’ concern that a ruling in the appellees favor might “open the door for landowners to convey a portion of their property containing a traditional access route to a third party,” noting that the statute still requires owners of a cemetery to provide access.
“[T]he common law doctrines of easement by prescription, prior use, or necessity remain unaffected by our interpretation of Code § 57-27.1,” the panel concluded.
