Jennifer Kuntz

November 9, 2007

On October 31, 2007, The Commission for Architecture and the Built Environment ("CABE"), a British architects' lobbying group, called on urban planners and local authorities to include cemeteries in their "green space strategies." CABE is advocating that cemeteries: (1) be maintained as public parks; and, (2) as community commons for leisure and exploration.

According to CABE architects and environmentalists, cemeteries are not just resting places for the deceased. Instead, the group argued that historically, burial grounds were intended as public open spaces. The impetus for CABE's call for a revival of nineteenth century burial ground philosophy is the recognition that cemeteries are underused green-space, occupying from one-third to one-half of open green-space in Britain. The value of open green-space, in combination with its recognized health and environmental benefits, led CABE to encourage urban planners to construct visitor's centers, and promote cemetery walks and exploration.

The legal status of burial grounds differs in American and European law. For example, English common law viewed the burial plot as a temporary occupation of space, extinguished upon decomposition when the body no longer occupied the plot. The purpose of the English common law view was to recycle the limited space in churchyard burial grounds.

CABE's call to open Britain's cemeteries as public parks might have legal consequences in the United States, where the English common law viewpoint gave way in colonial times, in the face of an abundance of open-space and burial ground options. Instead, American courts have recognized property rights of the deceased in their burial plot, and the rights of heirs to protect the decedent's property right. While the deceased do not have a fee simple interest, the law recognizes an easement created by the burial plot.

What are the potential legal consequences of encouraging increased public use of cemeteries in the United States? Modern American property law has recognized, and awarded, all property law remedies for protecting burial plot interests—trespass, injunction, ejectment and defense against adverse possession. This is not to say that Americans aren't enjoying the open-space of our nation's burial grounds (cemetery walks and preservation clubs have been exploring and conserving cemeteries across the country), only that CABE's call to "publicize" burial grounds may be met with conceptual and legal resistance in the United States.

Sources:

Cemeteries Not Just for the Dead, Say Architects, Reuters, Oct. 31, 2007, available at http://www.enn.com/ecosystems/article/24184.

C. Allen Shaffer, The Standing of the Dead: Solving the Problem of Abandoned Graveyards, 32 Cap. U. L. Rev. 479, 485 (2003).

The University of Pennsylvania, The Cemetery Lot: Rights and Restrictions, 109 U. Pa. L. Rev. 378, 379 (1961).