I have been informed that in regard to cemeteries that are totally landlocked on private property, access may be gained by a law that refers to "easement by necessity". Does anyone know more about this law? Our family is in a situation with a cemetery est in 1825 that is totally overgrown and is landlocked within a wooded isle that sits smack dab in the middle of planted fields. Any help is appreciated. Thanx. Teresa tielking <[email protected]> wrote: Hi Larry, Checking my e-mail late (again).... Question 1: Nope. This is my #1 complaint with cemetery law. There is no right of ingress and egress. I was told by Sen. Bev Gard and Rep. Tom Saunders that this issue would be extremely difficult to fight due to Indiana being strong in private property rights. I was told Farm Bureau would fight this issue and be hard to beat. There are other states that have cemetery access law - West Virginia being one of them. Mark Davis was kind to send me a copy of their legislation. We modeled legislation after the West Virginia law. We had an attorney who works for Historic Landmarks and the Indiana Historical Society help us in drafting legislation. But, due to time constraints, our drafts were never heard in committee. We had Senator Bev Gard ready to introduce and support our legislation if it went to the Senate. Same for Rep. Saunders and Rep. Adams (who "authored" HB 1441 "The Cemetery Maintenance Bill") if it went to the House. If you look at IC 6-1 Chapter 6.8 Assessment of Cemetery Land. Section 15 addresses a little bit of ingress and egress, but only for a "classified cemetery". An owner of a classified cemetery must allow family members and descendants at least one day each year to visit the cemetery. That is all fine and dandy, but who in their right mind would pay to have a cemetery classified as a cemetery?! The owner of the cemetery has to pay to have it surveyed and then pay taxes on it and then allow ingress and egress across their land for visitation. Surveys are not cheap. Question #2: Unfortunately, legislation is always open to interpretation. IC 35-43-1-2.1 Section 3 (b) states that a person who recklessly, knowingly, or intentionally damages a cemetery, burial ground, facility, monument, artifact, ornamentation or enclosure commits a Class A misdemeanor or Class D felony depending on the amount of damage done. If somebody's cows are out in a cemetery, the cows are most likely going to do some damage i.e. rubbing against the stones, trampling stones, breaking the fence, etc....I personally think the farmer is liable for the damage. Same thing with plowing a cemetery. He/She knew the cemetery was there, but tilled it anyway. He/She did it intentionally, recklessly and knowingly. The law reads: Sec 2.1 (1) A person who acts in a proper and acceptable manner as authorized by IC 14-21 other than a person who disturbs the earth for an agricultural purpose UNDER THE EXEMPTION TO IC 14-21 that is provided in IC 14-21-1-24." It gets very confusing, but this is how I interpret the law and I know others think differently. I know it isn't much, but that is my two cents worth. Angela ----- Original Message ----- From: "Stephens, Larry V" To: Sent: Tuesday, August 10, 2004 8:40 AM Subject: [INPCRP] Indiana cemetery law > For the Indiana folks: I'd like a quick comment on my observations from reading the Indiana codes on cemeteries: > > I find nothing that gives anyone the "right" to access a cemetery on private land. > > I find nothing that says you have to protect a private cemetery, e.g., fence it to keep the cows out. I did see some code about protecting a "public" cemetery but my reading of the code is a public cemetery is one that has been deeded to a public arm, like the township. A cemetery that is on private land and is still owned by the landowner is not, by my reading, "public" and does not have to be protected. > > > > If anyone can point me to any IC that says differently, please do. > > Thanks. > > > > > Larry V. Stephens > Office of Risk Management > 812-855-9758 > [email protected] > > > > ==== INPCRP Mailing List ==== > INPCRP State Coordinator: Brad Manzenberger < [email protected] > > http://www.inpcrp.org > ==== INPCRP Mailing List ==== "Show me your cemeteries, and I will tell you what kind of people you have." Benjamin Franklin (1706 - 1790)

"Easement by necessity" is an old concept in Indiana property law. Unfortunately, to determine whether it applies in your case you will need to consult an attorney who is familiar with the legal concept and probably need title searches. The concept arose to deal with the situation of a landowner who conveyed away part of his property that was landlocked by other property that he retained. The courts implied an easement somewhere across the remainder of his property so the new owner could have access to a road. It had to be a real necessity, not just a convenience. So if one side of the sold property had access to a road, but the side of the sold property that had the barn did not have such access without crossing the property of the previous landowner, too bad. Also, the concept requires that conveyed away land once to have been owned by the same owner of the land across which an easement is sought. That's why a title search will be necessary. The easement, if any, arose out of necessity when the land was sold. So if things changed in the intervening years, too bad, and if the land with the cemetery never had a common owner with the land across which the easement was sought, also too bad. It is said that an easement of "necessity cannot arise against the lands of a stranger." In other words, if an easement of necessity exists, it exists only because of conditions at the time the land was divided for sale and only if the landlocked land and the land across which the easement is sought had common ownership. If the landlocked cemetery is cut off from road access by land that was never owned somewhere up the line by the same person that owned the cemetery land, probably too bad. You'll only figure out who owned what and when by analyzing title searches. To make this even more complicated, easement by necessity cases usually involve disputes between landowners. Presumably the persons seeking access to the landlocked cemeteries are not the owners of the cemetery but rather descendants or relatives or just interested persons concerned about the cemetery. Whether the concept of "easement by necessity" grants them access is far from clear. So, to figure this out you'll need an attorney and title information. ----- Original Message ----- From: "Rahn Teresa" <[email protected]> To: <[email protected]> Sent: Monday, August 16, 2004 11:01 AM Subject: Re: [INPCRP] Indiana cemetery law > I have been informed that in regard to cemeteries that are totally landlocked on private property, access may be gained by a law that refers to "easement by necessity". > Does anyone know more about this law? Our family is in a situation with a cemetery est in 1825 that is totally overgrown and is landlocked within a wooded isle that sits smack dab in the middle of planted fields. Any help is appreciated. Thanx. > > Teresa > > tielking <[email protected]> wrote: > Hi Larry, > > Checking my e-mail late (again).... > Question 1: Nope. This is my #1 complaint with cemetery law. There is no > right of ingress and egress. I was told by Sen. Bev Gard and Rep. Tom > Saunders that this issue would be extremely difficult to fight due to > Indiana being strong in private property rights. I was told Farm Bureau > would fight this issue and be hard to beat. There are other states that have > cemetery access law - West Virginia being one of them. Mark Davis was kind > to send me a copy of their legislation. We modeled legislation after the > West Virginia law. > We had an attorney who works for Historic Landmarks and the Indiana > Historical Society help us in drafting legislation. But, due to time > constraints, our drafts were never heard in committee. We had Senator Bev > Gard ready to introduce and support our legislation if it went to the > Senate. Same for Rep. Saunders and Rep. Adams (who "authored" HB 1441 "The > Cemetery Maintenance Bill") if it went to the House. > If you look at IC 6-1 Chapter 6.8 Assessment of Cemetery Land. Section 15 > addresses a little bit of ingress and egress, but only for a "classified > cemetery". An owner of a classified cemetery must allow family members and > descendants at least one day each year to visit the cemetery. That is all > fine and dandy, but who in their right mind would pay to have a cemetery > classified as a cemetery?! The owner of the cemetery has to pay to have it > surveyed and then pay taxes on it and then allow ingress and egress across > their land for visitation. Surveys are not cheap. > > > Question #2: Unfortunately, legislation is always open to interpretation. IC > 35-43-1-2.1 Section 3 (b) states that a person who recklessly, knowingly, or > intentionally damages a cemetery, burial ground, facility, monument, > artifact, ornamentation or enclosure commits a Class A misdemeanor or Class > D felony depending on the amount of damage done. If somebody's cows are out > in a cemetery, the cows are most likely going to do some damage i.e. rubbing > against the stones, trampling stones, breaking the fence, etc....I > personally think the farmer is liable for the damage. Same thing with > plowing a cemetery. He/She knew the cemetery was there, but tilled it > anyway. He/She did it intentionally, recklessly and knowingly. > > The law reads: Sec 2.1 (1) A person who acts in a proper and acceptable > manner as authorized by IC 14-21 other than a person who disturbs the earth > for an agricultural purpose UNDER THE EXEMPTION TO IC 14-21 that is provided > in IC 14-21-1-24." > It gets very confusing, but this is how I interpret the law and I know > others think differently. > > I know it isn't much, but that is my two cents worth. > Angela > > ----- Original Message ----- > From: "Stephens, Larry V" > To: > Sent: Tuesday, August 10, 2004 8:40 AM > Subject: [INPCRP] Indiana cemetery law > > > > For the Indiana folks: I'd like a quick comment on my observations from > reading the Indiana codes on cemeteries: > > > > I find nothing that gives anyone the "right" to access a cemetery on > private land. > > > > > I find nothing that says you have to protect a private cemetery, e.g., > fence it to keep the cows out. I did see some code about protecting a > "public" cemetery but my reading of the code is a public cemetery is one > that has been deeded to a public arm, like the township. A cemetery that is > on private land and is still owned by the landowner is not, by my reading, > "public" and does not have to be protected. > > > > > > > > If anyone can point me to any IC that says differently, please do. > > > > Thanks. > > > > > > > > > > Larry V. Stephens > > Office of Risk Management > > 812-855-9758 > > [email protected] > > > > > > > > ==== INPCRP Mailing List ==== > > INPCRP State Coordinator: Brad Manzenberger < [email protected] > > > http://www.inpcrp.org > > > > > ==== INPCRP Mailing List ==== > "Show me your cemeteries, and I will tell you what kind of people you have." > Benjamin Franklin (1706 - 1790) > > > > ==== INPCRP Mailing List ==== > Visit the INPCRP on the web at http://www.inpcrp.org > > >

Teresa, I brought this particular item up in I think in March on this list. I read about this "easement by necessity" in a real estate class. It says that "an easement by necessity is created by court order based on the principle that owners have the right to enter and exit their land (the right of ingress and egress) - they should not be landlocked." I guess it is how you view this type of easement. Can an easement by necessity be something we can use to gain access to landlocked cemeteries? Is it necessary to cross private property to visit ancestors? Is it necessary to maintain the cemetery? How will the courts view this? We need a law that addresses the right of ingress and egress when it comes to cemeteries - plain and simply. I don't see it happening anytime soon, but I think it will happen. If anyone has used this line of defense to gain access to a landlocked cemetery, please respond. Angela ---- Original Message ----- From: "Rahn Teresa" <[email protected]> To: <[email protected]> Sent: Monday, August 16, 2004 11:01 AM Subject: Re: [INPCRP] Indiana cemetery law > I have been informed that in regard to cemeteries that are totally landlocked on private property, access may be gained by a law that refers to "easement by necessity". > Does anyone know more about this law? Our family is in a situation with a cemetery est in 1825 that is totally overgrown and is landlocked within a wooded isle that sits smack dab in the middle of planted fields. Any help is appreciated. Thanx. > > Teresa > > tielking <[email protected]> wrote: > Hi Larry, > > Checking my e-mail late (again).... > Question 1: Nope. This is my #1 complaint with cemetery law. There is no > right of ingress and egress. I was told by Sen. Bev Gard and Rep. Tom > Saunders that this issue would be extremely difficult to fight due to > Indiana being strong in private property rights. I was told Farm Bureau > would fight this issue and be hard to beat. There are other states that have > cemetery access law - West Virginia being one of them. Mark Davis was kind > to send me a copy of their legislation. We modeled legislation after the > West Virginia law. > We had an attorney who works for Historic Landmarks and the Indiana > Historical Society help us in drafting legislation. But, due to time > constraints, our drafts were never heard in committee. We had Senator Bev > Gard ready to introduce and support our legislation if it went to the > Senate. Same for Rep. Saunders and Rep. Adams (who "authored" HB 1441 "The > Cemetery Maintenance Bill") if it went to the House. > If you look at IC 6-1 Chapter 6.8 Assessment of Cemetery Land. Section 15 > addresses a little bit of ingress and egress, but only for a "classified > cemetery". An owner of a classified cemetery must allow family members and > descendants at least one day each year to visit the cemetery. That is all > fine and dandy, but who in their right mind would pay to have a cemetery > classified as a cemetery?! The owner of the cemetery has to pay to have it > surveyed and then pay taxes on it and then allow ingress and egress across > their land for visitation. Surveys are not cheap. > > > Question #2: Unfortunately, legislation is always open to interpretation. IC > 35-43-1-2.1 Section 3 (b) states that a person who recklessly, knowingly, or > intentionally damages a cemetery, burial ground, facility, monument, > artifact, ornamentation or enclosure commits a Class A misdemeanor or Class > D felony depending on the amount of damage done. If somebody's cows are out > in a cemetery, the cows are most likely going to do some damage i.e. rubbing > against the stones, trampling stones, breaking the fence, etc....I > personally think the farmer is liable for the damage. Same thing with > plowing a cemetery. He/She knew the cemetery was there, but tilled it > anyway. He/She did it intentionally, recklessly and knowingly. > > The law reads: Sec 2.1 (1) A person who acts in a proper and acceptable > manner as authorized by IC 14-21 other than a person who disturbs the earth > for an agricultural purpose UNDER THE EXEMPTION TO IC 14-21 that is provided > in IC 14-21-1-24." > It gets very confusing, but this is how I interpret the law and I know > others think differently. > > I know it isn't much, but that is my two cents worth. > Angela > > ----- Original Message ----- > From: "Stephens, Larry V" > To: > Sent: Tuesday, August 10, 2004 8:40 AM > Subject: [INPCRP] Indiana cemetery law > > > > For the Indiana folks: I'd like a quick comment on my observations from > reading the Indiana codes on cemeteries: > > > > I find nothing that gives anyone the "right" to access a cemetery on > private land. > > > > > I find nothing that says you have to protect a private cemetery, e.g., > fence it to keep the cows out. I did see some code about protecting a > "public" cemetery but my reading of the code is a public cemetery is one > that has been deeded to a public arm, like the township. A cemetery that is > on private land and is still owned by the landowner is not, by my reading, > "public" and does not have to be protected. > > > > > > > > If anyone can point me to any IC that says differently, please do. > > > > Thanks. > > > > > > > > > > Larry V. Stephens > > Office of Risk Management > > 812-855-9758 > > [email protected] > > > > > > > > ==== INPCRP Mailing List ==== > > INPCRP State Coordinator: Brad Manzenberger < [email protected] > > > http://www.inpcrp.org > > > > > ==== INPCRP Mailing List ==== > "Show me your cemeteries, and I will tell you what kind of people you have." > Benjamin Franklin (1706 - 1790) > > > > ==== INPCRP Mailing List ==== > Visit the INPCRP on the web at http://www.inpcrp.org >