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Massachusetts Agencies

Burial Grounds

Burial Rights

Although the right can be lost over time, the law recognizes the privilege of persons to protect the graves of ancestors from desecration. See Sanford v. Vinal, 28 Mass. App. Ct. 476, 552 N.E.2d 579 (1990). Although the court decided in Sanford that the plaintiff could not prevent the desecration of a graveyard (because an intervening registration proceeding had extinguished her right), the court articulated the in great detail exactly what those rights are:

It is the last point that Sanford most strenuously contests. Descendants generally, she argues, should have standing in a court of equity to protect the graves of their ancestors from desecration. She relies, particularly, on a much-followed Tennessee case, cited by the judge, Hines v. State, 126 Tenn. 1 (1911), which, like the present case, involved a family burial plot on a farm which had passed from family ownership to strangers. The legal relationship thereafter of the family to the burial ground was described in these terms:

When land has been definitely appropriated to burial purposes, it cannot be conveyed or devised as other property, so as to interfere with the use and purposes to which it has been devoted. When once dedicated to burial purposes, and interments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust. The right of burial extends to all the descendants of the owner who devoted the property to burial purposes, and they may exercise it when the necessity arises.

They also have the right to visit the cemetery for the purpose of repairing, beautifying, and protecting the graves and grounds around the same, and for these purposes they have the right of ingress and egress from the public road nearest the cemetery, to be exercised at seasonable times and in a reasonable manner.

Early Massachusetts cases, if read superficially, seem to restrict standing in grave-desecration cases to those who hold legal title to the burial ground. See, e.g., Meagher v. Driscoll, 99 Mass. 281, 284 (1868)("though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains when dead and buried"); Feeley v. Andrews, 191 Mass. 313, 317 (1906)("when the plaintiffs' father committed the bodies of his child and his wife to the earth, they became part of the land of another, and the only person who could maintain an action for interfering with those bodies is the owner of the land of which those bodies became a part"). But these cases must be understood in the context of the strict division then obtaining between courts of law and courts of equity: they were legal actions for damages, sounding in the form of action called trespass quare clausum fregit, which could be maintained only by a person who was in lawful possession of the land. Barnstable v. Thacher, 3 Met. 239, 242 (1841); Meagher v. Driscoll, 99 Mass. at 284. In the ordinary case of lots in public cemeteries, the "certificate or deed ... conveys the privilege to make interments in the lots; it is not a grant of any interest in the soil, but is in the nature of an easement or irrevocable license so long as the place continues as a burial ground." Trefry v. Younger, 226 Mass. at 9. See also Lakin v. Ames, 10 Cush. 198, 220--221 (1852). Here, as a result of the deed of 1707 or 1708, Edward Wanton and Joseph Rogers held title to the burial ground in fee, and, absent contrary provisions in wills, the title would have descended to their heirs. See G. L. c. 114, § 31. We know the burial ground was excepted from the 1745 conveyance by which title to the farm passed from the Wanton family. Thereafter the record is silent, but we know that the certificate of title confirmed in Emma J. Bailey in 1941 extinguished any possessory rights that may have remained in the Wanton heirs down to that date. It is thus true that, under theMeagher v. Driscoll line of cases, the Wanton descendants, indeed even the Wanton heirs, would now lack standing to maintain an action at law for damages for the desecration of their ancestors' graves.

There is no necessary inconsistency between this line of cases and the Hines case, on which the plaintiff relies and which recognized equitable rights in descendants of ingress to and egress from the family burial plots to preserve and beautify, to meditate and to bury. Thus, it was said inMcAndrew v. Quirk, 329 Mass. 423 (1952), that, although "[t]he purchaser of a cemetery lot ordinarily does not obtain a fee in the lot but acquires only a right to burial or an easement to use the lot for burial of the dead so long as the place continues to be used as a cemetery," id. at 425, nevertheless such a lot "is a family burial lot. It is that fact alone which gives a peculiar limitation to its tenure. The heir takes it subject to all the conditions for which the ancestor held it. A sort of trust attaches to the land for the benefit of the family." Id. at 426, quoting from Waldron, petitioner, 26 R.I. 84, 86 (1904). In Messina v. LaRosa, 337 Mass. 438 (1958), the court recognized standing in the plaintiff to protect the integrity of her deceased sister's gravestone and to prevent the burial of strangers in her grave lot by the person who had succeeded to legal ownership. "This is not an application of any rule of property law," the court said, "but is a recognition of principles of ethics, propriety, and common decency which equity is peculiarly qualified to enforce." Id. at 442. See alsoAntoniewicz v. Del Prete, 340 Mass. 742, 743 (1960), recognizing the right of the family to obtain equitable remedies against encroachment on the family burial plot.