Out here in the US’ Southwest, there’s potentially thousands of unmarked, frontier or settler graves. Then, there’s a handful of gravesites that are marked. I happen to drive by a prominent one on my way through Datil, NM that lays on private land. That Morley gravesite (at least the cenotaph) sticks out from the rolling hills like a sore thumb, and is kind of a local by-the-road stopping point; the landowner’s fence before the actual site is very clearly marked as “Private Property – No Trespassing,” and I imagine the current owners were a little sick and tired of people coming up to gawk at it.
Hypothetically, if I’m a private landowner that’s purchased land that happens to have a gravesite on it, what rights does a landowner have to move a ‘nuisance’ that’s not a “public” cemetery?
A couple of stipulations:
I am assuming the gravesite is not a Native American grave, subject to NAGPRA.
It could be a family cemetery, or a single gravesite. Could be marked, or not (found accidentally, such as when excavating a foundation for a cabin)
I hadn’t considered easements, but given the Morley site, I would expect it not to have one.
We’re talking long-disused/abandoned gravesites; any next-of-kin haven’t been around to visit or maintain in years.
The land has been legally bought and purchased; the gravesite may have been noted in the closing paperwork if known, or not noted if it’s a “surprise.”
So, before I go diggin’ up the long-abandoned grave of Mose from Open Range on my 100 acres, what do I need to do?
Tripler
Don’t need answer fast; it’s kind of a dead topic.
I imagine this will vary considerably by state. In Texas, Health and Safety Code §711, generally deals with dealing with remains, cemeteries, graves, and the like. 711.010 deals with an abandoned cemetery. Reading through the code section, it sounds like disinterment can be a giant PITA, with a court order required, notice to the deceased’s relatives, another state agency dealing with the dead, the Texas Historical Commission etc…
You can’t just dig it up with a backhoe and dump it in the trash. The section I read mentions interment within a ‘perpetual cemetery’. I dunno who pays. Probably the landowner.
In my state of Florida, “A person commits a felony of the third degree […] if he or she […] Willfully and knowingly destroys, mutilates, defaces, injures, or removes any tomb, monument, gravestone, burial mound, earthen or shell monument containing human skeletal remains or associated burial artifacts, or other structure or thing placed or designed for a memorial of the dead […];”. 872.02, Fla. Stat. (2019).
An exemption is made for cemetaries operating on their own plots, persons operating under instruction from the Division of Historical Resources of the Department of State of Florida, and persons otherwise authorized by law.
A set of my great-great-great-grandparents (and several of their relatives) are buried in an island in the middle of a store parking lot deep inside a crowded retail area of the city of Greenville, SC. I’m sure if the property owners could get rid of it, they would.
Jurisdictions will vary but if you found bones while digging the first step is usually police/coroner to legally determine whether or not there was foul play or potential crime. After that it becomes a question of establishing a likely date of burial, as this may affect whether the health requirements relating to modern burials and exposure of human remains apply, or whether heritage laws come into effect…
If you genuinely need to know, ring some archaeological consulting firms who work in your state. Its a bit of the law they will have stepped through more than once. And having professionally competent people being able to report that the grave was dug in c.1850-1880 is a lot more credible than you as a landowner with a financial interest in the outcome saying ‘of course its old’ and Statutes XYZ should not apply.
I had totally forgotten about archeological firms. You’re correct, that if I’m building Rancho Tripler-o with a nifty little cabin, and come across “Mose,” the first call’d be to the local Sheriff’s office. That being said, hearing that UNM in Albuquerque has a robust archeological/anthropological department, I call them too. I didn’t realize there were private firms that did this, though.
Tripler
I gotta wonder if this has come up before.
This is exactly what happened when my BFF’s dad accidentally exhumed some bones while plowing their farm on the Kansas prairie. He called the police, and they notified the appropriate authorities and in time determined that the bones belonged to a Caucasian man in his 40s who most likely died in the 1800s. He was probably someone passing through in a covered wagon, and died, and that’s where he was buried.
The bones were later buried in a pine box at the county cemetery.
If you look at it in Google Maps satellite view or street view, you’ll see where they even had to build a retaining wall several feet high around parts of it, as most of the land was flattened down well beneath the original surface when they were building Greenville around it. (The area used to be the family farm.) So they had to go to special effort and expense to preserve the site.
I’ve found human bones on our property.
It was not fun.
They weren’t in a grave, as such. More like down the old outdoor toilet.
The sheriff came and asked questions and retained the head of the deceased.
It was stupid.
I should’ve never been so curious.
She would still be resting in peace.
See, @nearwildheaven ‘s scenario is exactly what concerns me. It’s one thing to want to dig up and move ol’ Morley from the property, 'cause he’s been there for so long. But finding a random grave on some property, I expect would bring any work/land value to a hard, screeching halt. Maybe.
Tripler
The last thing I need is the television to start talking to me about “the light.”
Boy, this REALLY depends on the state and how they would want to do about it. I know that here in Maryland there are a number of small cemeteries around the state, many of them on private property. The state laws are that the cemeteries can be moved, but it requires any living relatives to be ok with it and they have to be moved to a larger cemetery.
There have been massive fights about leaving cemeteries in place, even if it is in the way of new construction. Here is one article about the National Harbor cemetery. Of course around here there have been a number of African American cemeteries that have been outright destroyed over the years. One in Frederick Maryland was turned in to a playground. There was one in Rockville that is believed to have been paved over for a parking lot.
Even with the laws in place though these small cemeteries get destroyed. I can think of three off the top of my head. The Cronise family was destroyed for a community pool. The Rine Family was right next to two major roads and one day was just gone. No one knows what happened to the stones. The McLain family was destroyed back in April. The contractor thought no one knew the cemetery was there and bulldozed over everything. The county and the state are looking in to it now.
The local Maryland laws are kind of in limbo right now. There was a push to allow interested people to have access to cemeteries on private property. Most people are ok with allowing people to go to the cemetery, but some put up a real fight.
As to your other questions, I don’t think the land owner has any rights to have a cemetery moved just because they don’t like it. That doesn’t mean that they don’t get moved, or outright destroyed, but I have a hard time thinking that today it would be allowed. One would hope that the person who bought the land knew the cemetery was there. At least if there are head stones in place one would hope it’s known about. I have seen cases where the cemetery gets dropped out of the deed, but those are usually cases of when there were no stones left. I can also see where it was just one person who died while moving 150+ years ago there being no record of it, but then you’d never really know unless the body got dug up.
A few years ago a new mall was being built near me. The new outdoor mall essentially replaces an old indoor mall that is too costly to maintain. Anyway, ¾ of the way through construction they discover a large graveyard. Oops. Part of the mall was already in operation. The graves were a problem. There were no grave markings and nothing on the property deeds. So the developer was preparing to move the graves-since no one knew who the dead were there were no living relatives to deal with. Then it got complicated. Finally someone turned up who remembered this graveyard. It turned out it was a graveyard for black americans who served in the military in world war I. This is near New Orleans and apparently black american servicemen were mostly working down on the docks in New Orleans. Conditions being what they were back then in New Orleans, the death rate among all races was quite high. But a segregated military needed a quick and easy way to handle their casualties and an empty plot of land out in the country was ideal. Once it became apparent this was a Veterans gravesite the Military and Veterans Admin got involved. It was resolved, but it took a while.
Unless the law has changed I believe here in NC you have to publish an ad in the local newspaper to try and find any kin that may still be local. That assumes you tried to find kin before using the paper ad.
So … If you discover an unmarked grave, and it’s old enough that you’re pretty sure it doesn’t mark a recent crime, you are probably best to tell no one and quietly complete your construction project. That’s what I’m reading.
I would hope that most grave sites are marked in some way and noted in the deed, and the landowner knows about it prior to purchase.
No, what you should be reading is that there are laws protecting human remains, and that there are processes that work through the competing issues so, hopefully everyone has a satisfactory outcome.
If you dig a hole and find a rock, you could reasonably assume you own it and can do whatever you want with it. If you dig up a human femur can you say that you own it, or who does? Can you say there is no criminal, coronial, public health, archaeological, ancestral heritage issues that apply? I highly doubt it, and that’s why you step through the processes to sort it out. Depending on the exact circumstances you should be able to shift it but you will need to satisfy reasonable expectations that you are not disinterring, say, plague victims, former soldiers, a murder victim or your great uncle Steve.
Okay, so I’ll rephrase that and say that it’s really really bad luck if you have the misfortune to accidentally discover human remains on property you hoped to do anything with. Because it opens a can of worms that might be something you can resolve, but even if you can ultimately complete whatever it is you were hoping to do, it will delay it by months or years.
Although I suppose it would be incredibly cool to find an archeologically interesting site. And creepy as all get out to accidentally uncover evidence of a murder or something.
. …!