Excepting the Dead

By Daniel Richardson

In re Guite, 2011 VT 58.

Imagine this.  You are looking for the perfect home for your family.  After scouring the state, you finally find the perfect parcel to build your dream.  There is one hitch.  The site where your family’s dream house should go—the spot where the sun and mountains coalesce into a backdrop that would make Frederick Church blush—is also the site of an old cemetery. 

But you are a dreamer, a dreamer with capital.  So you go ahead and purchase the land and lay in plans to build.  But first you have to remove the cemetery.  This should not be a big deal.  The last burial was before 1853.  Who is going to care about some bodies in the ground?  We are talking about a killer building site.  Or as your construction foreman might say, “Whadda they care?  They ain’t using the view.”

Armed with a good attorney, you march into probate court and file a petition to remove the bodies to the town cemetery.  Then things get weird.

A respondent arises, a previous owner of the property who sold it in 1983 but not before burying mom and dad in the cemetery and taking an easement on their lots.  Respondent makes clear that he has no intention in permitting mom, dad, or any of the previous residents to leave.  But respondent’s rights, as well as yours, depend on whether he had the power to reserve an easement, which in turn rests upon the original 1853 deed that first references the cemetery.

So begins the factual scene for today’s opinion from the SCOV.  The question at the bottom of the case depends on whether the Aldriches, who owned the land in 1853, intended to keep the cemetery land fee simple (in its entirety) or simply keep an easement (rights to visit and maintain) to the burial grounds.  If the Aldriches only kept an easement, that means that the respondent had the right to reserve an easement in the property 130 years later and can enforce against the current owner.  If, however, the Aldriches kept the cemetery lot in fee simple, then respondent has nothing because he could not have reserved an easement on something that he did not own (it’s the same reason why you cannot go and sell your neighbor’s house while they are away on vacation). 

Of course, knowing what the Aldriches intended in 1853 is impossible in direct examination; so the SCOV goes to the next best thing: the language of the 1853 deed and looks at the words used.  The SCOV’s analysis zeroes in on two words: excepting and reserving.  The former is a word used in deeds of that vintage to indicate the type of complete withholding that we associate with fee simple.  The latter was used to create more limited easements.  In the Aldrich deed the only word used is excepting.  Therefore, the SCOV rules that the deed carved out the cemetery in fee simple and left it in the hands of the Aldriches.  The respondent’s 1983 deed and arguments are dismissed. 

But before it gets to this end, the SCOV has to bury two sets of counter-arguments that the respondent raises.  The first concerns what before this case was the leading light of cemetery law, In re Estate of Harding.  In Harding, the SCOV ruled that a 19th century deed created only an easement in a private cemetery plot despite the fact that it included the term excepting  because it also used the term reserving.  What is tricky in trying to differentiate Harding from the present case is the strong backbeat in the Harding opinion that suggests when in doubt about what a grantor intended when reserving a cemetery always bet on easement. 

The SCOV does not directly attack the reasoning of Harding but distinguishes it by ticking off the factual difference between the two cases.  In addition to omitting the word reserving, the Aldriches also included a metes and bounds description of the land and described what they were holding onto as “ground” rather than a “cemetery plot.”  For the SCOV, those three variations are enough to show a radically different intent by the Aldriches, and the outcome is the opposite of Harding while not explicitly limiting that decision’s reasoning.

The second concern that the SCOV deals with concerns more the background reasoning from Harding and the general law of cemeteries.  In both, there is a presumption, or at least tradition, that cemetery plots should be treated as easements.  That is certainly the modern tradition.  If you purchase a lot at your town cemetery you are not purchasing real estate but a right to be buried in the lot.  So if you dreamed of buying a lot on a hilltop cemetery to erect a wind turbine, think again, the only green activity you will be permitted to do there is recycling.

Respondent points to this tradition, noting that the Aldriches never executed a separate deed for the cemetery lots, never reserved an easement to access the land, never paid property taxes on it, and never behaved in any way consistent with an owner in fee simple.  Such reasoning holds no water with the SCOV.  It does not matter what tradition is or how the Aldriches behaved after 1853.  The deed is the key, and the individual interpretation for this specific bequest stands on its own language.

What does this mean for our hero, the petitioner?  The SCOV remands the case back to the trial court for further rulings, but with this ruling, respondent no longer has standing to oppose the petition and will likely be dismissed from the case.  The SCOV’s holding poses a different problem for petitioner who must now chase down the Aldrich heirs and obtain quit claim deeds from them to establish that he owns the right to the land where cemetery plot is located.  Unless petitioner or his clever attorneys can figure out a different way of gaining ownership, this is likely to be a lengthy and difficult process depending on the fruitfulness of several generations of Aldriches. 

Should petitioner succeed in this, we offer a bit of final advice.  Take the lesson of 1982’s Poltergeist to heart and make sure you move all the bodies before you build.