The Town had claimed that it had no obligation to remove the grass and weeds from nine of the ten cemeteries on the Fire Place History Club’s list because these nine graveyards were “private cemeteries.”  The Town further implied that in order to be a public cemetery, a cemetery must have been one formed by a cemetery association (or, at least, the Town implied that in order for any of the cemeteries on the Club’s list to have “a public nature,” they must have originally operated under the cemetery association laws of the State of New York).

1. The Town had contended that it is only through the sale and purchase of mapped lands or plots to the public, such as provided for in the Rural Cemetery Act of 1847, that a cemetery can be rendered “public.” The Rural Cemetery Act of 1847 was the first general cemetery association law passed in New York State. In the motion, the Fire Place History Club showed that the history of Section 291 (Town Cemetery Law) pre-dates that of cemetery association law by several decades. The first sentence of the current Section 291 derives directly from a Revised Law of 1828 (which itself was a re-enactment of a law passed in 1826). When that law became effective, it applied to cemeteries that had existed in 1813 and earlier. The Town had stated that the provisions of Section 291 applied only to “public” cemeteries, so there must necessarily be conditions that can cause a cemetery to have “a public nature” other than the single method stated by the Town; that is, the “sale and purchase of mapped lands or plots to the public.” The sale of plots to the public became an activity sanctioned by law long after the first sentence of Section 291 was written, a sentence which has changed very little in its wording over a span of 182 years.

2. The Fire Place History Club then described three other methods by which a “private cemetery” might acquire “a public nature.”

a. A cemetery acquires “a public nature” when it is purchased by a public governmental entity. A “private cemetery” can no longer be “private” if it no longer has a “private” owner. One of the cemeteries on the Fire Place History Club’s list, the Rose cemetery, is on land owned by the Town. In its Verified Answer, the Town acknowledged that it had a duty to care for that cemetery. In its Verified Answer, the Town had referenced an Opinion of the State Comptroller. In that opinion, the State Comptroller stated that even though the governmental entity owning a cemetery might not be the Town, it was still the Town’s responsibility, under Section 291, to remove the grass and weeds and preserve, care for, and fence the cemetery. Section 291 places the obligation of preserving and maintaining such cemeteries on the Town, even when the property on which they are located is not owned by the Town. Section 291 places the duty on the Town of caring for such cemeteries, “by whomsoever owned.” Four additional cemeteries on the Fire Place History Club’s list were acknowledged by the Town to be owned by other governmental entities. The Town claimed it had no responsibility for caring for these cemeteries, but the Opinion of the State Comptroller shows that claim to be invalid.

b. A cemetery acquires “a public nature” when the property where it is located reverts to the people of the State of New York as a result of the title having failed “from a defect of heirs.” Under the Abandoned Property Law of the State of New York, a cemetery on a property for which no one any longer holds the title escheats to the people, and thus it acquires “a public nature.” The “public nature” is acquired upon there being a defect of heirs, not when some public agent files to acquire the title to the property for the State of New York. In fact, no public agent can make such a filing until after the property has reverted to the people. So the “state of having a public nature” can exist for a cemetery whether or not any public agent may have claimed title to it for the state; that “public nature” exists from the time when there existed “a defect of heirs” — at that moment, the land “reverted to the people.” Land that has reverted to the people is undeniably public land, “by whomsoever owned,” and when such land is a cemetery, it is the duty of the Town to remove the grass and weeds from it and preserve, care for, and fence it. Four of the remaining cemeteries on the Club’s list were declared in an affidavit filed by the Town to have no known owners. A burial ground can be private only if there exists a private owner who controls who may be buried in it and regulates access to it. The Town is unable to show that there are any longer any living persons who hold title to any of the four cemeteries. Thus, these properties have reverted to the people and have “a pubic nature.” The cemeteries on those properties, being owned by the people, are public cemeteries which the Town must maintain and preserve.

c. A cemetery can acquire “a public nature” by “public user.” An opinion of the State Comptroller in 1965 affirms that a cemetery may become public by “public user.” That opinion implies that use of a cemetery by the public for a period of fourteen years can cause a cemetery to take on “a public nature.” Unless an owner takes some positive action “amounting to an interruption to the ‘adverse user,'” the continued enjoyment and use of the cemeteries by the public over an extended period of time can establish “a public easement interest” in them. The remaining cemetery on the Club’s list was shown to be just such a cemetery, and therefore one that the Town was obligated to maintain and preserve. In fact, all ten cemeteries had been shown by the Town’s own actions to have been adopted by the Town through its caring for and maintaining them from as early as 1937. The public had continued to use the cemeteries even after the Town ceased caring for them, so the public user easement had not been extinguished. All ten cemeteries were cemeteries of “a public nature” based on this fact alone (regardless of whether or not any heir might someday be found). These cemeteries are cemeteries, by whomsoever owned, for which the Town must remove the grass and weeds and which the Town must preserve, care for, and fence.

Note: In addition to the three methods given above through which a cemetery may acquire “a public nature,” and the single method given by the Town — through a cemetery association operating under the laws for such associations passed in 1847 and later, there is a fifth way, through a special act of the New York State legislature. This fifth method is represented by an act incorporating the Westfield cemetery in 1843 and by an act reviving the Utica Cemetery Association in 1844.

* New York Supreme Court, 25 January 2010, Central Islip, NY, Index No. 09-28006.