Document Type

Working Paper

Publication Date

8-11-2005

SSRN Discipline

Economics Research Network; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; Humanities Network

Abstract

Descendants of people buried in cemeteries on private property have a common law right to access that property to visit the cemetery That right which is akin to an implied easement in gross is recognized by statute in about a quarter of states and by case law in many others Grave Matters explores the origins nature and scope of the littlerecognized right and its implications for property theory It discusses the right as part of wellestablished property doctrine and its relationship to recent takings cases as well as the corollary graveyard right against desecration and the correlative right of communities to relocate cemeteriesThe right of access which traces its roots to the early the nineteenthcentury is important because it is one of the few implied rights of access to private property It limits by implication the right to exclude which is at the core of property rights Thus it offers a way of getting access to property without facing a takings claim Moreover the right is important because it reminds us that there are limits of the right of exclusion which were recognized at common law The right of relocation further illustrates the careful balancing of property rights with the communitys right Thus the graveyard rights together emerge as vestiges of the nineteenthcenturys consideration of community and property A final section suggests the importance of the right of access for recent discussion about reparations for the era of slavery for the right of access provides a property right an easement in descendants of slaves buried on plantations to access those plantations The property held by descendants provides important symbolic connections between the past and present and offers hope of a lawsuit for reparations that is not barred by the statute of limitations

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