… it’s a grave matter

The Legal Genealogist cannot resist the pun: calling the case of Knick v. Township of Scott a grave matter.

It’s factually a case about access to graveyards.1

That’s not even remotely the legal issue involved, which focuses on the Takings Clause of the U.S. Constitution and whether a property owner who claims her property has been taken can sue in federal court or has to sue in state court first — none of which really impacts us as genealogists.

But it is worrisome, nonetheless, as a question from reader Barbara Ferrell suggests. So let’s talk about it.

The facts of the case, decided in June by the U.S. Supreme Court, are set out this way in the opinion:

Petitioner Rose Mary Knick owns 90 acres of land in Scott Township, Pennsylvania, a small community just north of Scranton. Knick lives in a single-family home on the property and uses the rest of the land as a grazing area for horses and other farm animals. The property includes a small graveyard where the ancestors of Knick’s neighbors are allegedly buried. Such family cemeteries are fairly common in Pennsylvania, where “backyard burials” have long been permitted.

In December 2012, the Township passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” The ordinance defined a “cemetery” as “[a] place or area of ground, whether contained on private or public property, which has been set apart for or otherwise utilized as a burial place for deceased human beings.” The ordinance also authorized Township “code enforcement” officers to “enter upon any property” to determine the existence and location of a cemetery. …

In 2013, a Township officer found several grave markers on Knick’s property and notified her that she was violating the ordinance by failing to open the cemetery to the public during the day. Knick responded by seeking declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property. …2

There are then three opinions — the majority opinion written by Chief Justice Roberts, a concurring opinion by Justice Thomas, and the dissenting opinion written by Justice Kagan — that consider the meaning of the Takings Clause in the Fifth Amendment to the U.S. Constitution — “nor shall private property be taken for public use, without just compensation”3 — and how the rules of procedure require cases of takings to be handled. The end result was that the landowner here was allowed to sue directly in federal court without going to state court first.

The ins and outs of this case really have more to do with how an individual gets a case heard by the courts than with the merits of the laws allowing (or forcing) access to private cemeteries on private land.

But that’s what ought to concern us, deeply, as genealogists here. Consider if you will:

• There is a private cemetery on private land.

• The town where the land is located says the landowner has to give open access to the cemetery during all daylight hours.

• The landowner’s reaction: sue the town. If she has to allow access to the cemetery, the town should have to pay for “taking” her land.

Can I ask one simple question here?

What is wrong with you, people?

Scott Township, what made you think that forcing someone to open private property without limitation during all daylight hours, every day, seven days a week, 365-days-a-year-except-in-Leap-Year was a good idea? She needs to drop everything, move her animals, to accommodate somebody who just shows up? You never heard of time, place and manner restrictions? A few hours here and there made available for people who make arrangements in advance?

And property owner, seriously? Going to court as the line of first defense? You never heard of “let’s work this out” as a way of resolving an issue? Like offering a few hours here and there for people whose ancestors are buried on your land is going to ruin your life and your land?

This kind of posturing by both sides is going to end up with genealogists and other researchers losing access to private cemeteries and the like that landowners might have tolerated if we’d all just been reasonable.

Public authorities, you need to know that there’s nothing wrong with visitors having to make advance arrangements for access, or limiting access to a few hours on a few days, or saying visitors have to use this particular path even if it’s longer and can’t accommodate wheelchairs and walkers. The reality is that private rural property isn’t a park — it’s usually a working farm.

Landowners, there’s nothing wrong with making those few hours available out of your busy life now and again to allow access to those private family cemeteries on your property. It’s not taking or destroying the value of your land to show that much respect for the families of those who owned that land before you did.

And both sides, you’re going to need to handle potential liability issues by requiring the visitors to sign waivers so it’s their own responsibility if they trip and hurt themselves.

But let’s not throw the baby out with the bathwater here. We don’t need to throw open the pasture gates on one side, or lock them down on the other. We can all give a little and get a lot by taking a few reasonable steps to honor the dead without unduly interfering with the living.


Cite/link to this post: Judy G. Russell, “About that court case…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 8 Oct 2019).

  1. See Knick v. Township of Scott, No. 17-647, slip opinion (U.S. 21 June 2019); PDF online at SupremeCourt.gov (https://www.supremecourt.gov/ : accessed 7 Oct 2019).
  2. Ibid., slip op. at 2-3.
  3. Fifth Amendment, U.S. Constitution, Legal Information Institute (https://www.law.cornell.edu/ : accessed 7 Oct 2019).
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