Church cemeteries are absolutely on private property. But again, it is public
use rather than
ownership which determines whether a cemetery is public.
It depends on whether the church provided burial plots to the public, including their own church members. Most cemeteries are located on private land, actually, be it land owned by a church, a private individual, or a corporation. There is a difference between a private cemetery and a privately owned or managedcemetery. A private cemetery is one where only family members, and those related by marriage, may be buried there. No plots are made available to the public. Many public cemeteries are privately owned and/or managed, but are still public cemeteries, and a church is a good example of that. A few churches have cemeteries which are truly private, despite people buried there not all being related by blood or marriage, but those are very, very rare, and can only be established in certain ways. Generally, these are relatively newly established churches (or rather, churches newly established in new locations).
A "dedication" of land for a particular use is an intentional appropriation of land by the owner to some proper public use. The essence of a dedication for public use is that it shall be for the use of the public at large. A
private or family cemetery, or rights incident to it, can be established or acquired only by:
- a means, other than dedication, which is legally sufficient to accomplish the creation or a transfer of an interest in real property, or
- an appropriation pursuant to the provisions of an applicable statute.
Meaning, if a church just starts burying its members out there without a formal dedication that restricts access, and those buried out there are not all related by blood or marriage, then it's a public cemetery, and they cannot come along later and change the dedication.
Property dedicated for use by the general public as a cemetery and which continues to serve that public purpose is:
- not susceptible to ownership,
- is not subject to prescription.
In the absence of any authorized exercise of the power of eminent domain, when a tract of land has been dedicated as a cemetery, it is perpetually devoted to the burial of the dead and may not be appropriated to any other purpose. The land owner, either the present land owner or some future land owner, has no right to recover the use of the land for any enjoyment or purpose of his/her own. The owner can do nothing which interferes with the use of the land as a cemetery. He/she cannot restrict the rights of relatives and friends to visit and care for the graves.
The dedication of a public cemetery is a real right in the nature of an irrevocable covenant running with the land. It is an implied contractual relationship that binds the owner, and is irrevocable.
Many churches have various restrictions in their bylaws for the cemetery, like who may be buried there. Some only allow church members to be buried there, others, especially churches in rural areas, allow anyone within the community to be buried there. Most of the latter will only allow church members to reserve plots ahead of time, tho. But anyone can visit graves there.
There are many old churches that have been sold off to private individuals and are no longer used as churches. Often the old church building gets torn down and a house is built in its place. The cemetery remains as a cemetery though, as once land has been dedicated as a public cemetery, it stays that way forever except in certain rare circumstances. So if you buy a property that has an old church with a cemetery on the land, you cannot just dig up the graves and relocate them at your will, nor can you prevent people from visiting the graves.
Once a cemetery, always a cemetery. And unless it's a private cemetery as classified by statute, it's a public cemetery, no matter who owns it.
Even if the cemetery is really old and he access road or path is overgrown with brush and trees, the owner cannot bar access to those wishing to visit the cemetery. All states, as far as I know, have laws similar to the Virginia law which lays it out. It applies to private individual, corporations, and churches.
Code of Virginia § 57-27.1 - Access to cemeteries located on private property; cause of action for injunctive relief; applicability.
A. 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 by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both. The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property. The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.
B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research. The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for the purpose of accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by a motor vehicle and the owner has given written permission to use the road or right-of-way of necessity.
C. Any person entering onto private property to access a gravesite or cemetery shall be responsible for conducting himself in a manner that does not damage the private lands, the cemetery or gravesites and shall be liable to the owner of the property for any damage caused as a result of his access.
D. Any person denied reasonable access under the provisions of this section may bring an action in the circuit court where the property is located to enjoin the owner of the property from denying the person reasonable ingress and egress to the cemetery or gravesite. In granting such relief, the court may (i) set the frequency of access, hours and duration of the access and (ii) award reasonable attorney fees and costs to the person denied such access.
E. The provisions of this section shall not apply to any deed or other written instrument that creates or reserves a cemetery or gravesite on private property.
