|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: September 25, 2009
RE: Burying bodies in the backyard
The City has this question: Can a person who has died and who wants to be buried in his backyard (in the city) actually be buried there?
The answer is no, unless there is already a private cemetery established there.
Surprisingly, there are no state statutes that prohibit the burial of dead bodies on private property; indeed, there are family, church and neighborhood burial grounds located all over the state, and probably every other state as well. Tennessee Code Annotated, ' 46-1-101 et seq., regulates cemeteries in Tennessee, but excepts cemeteries owned by: municipalities, churches, religious organizations, general welfare organizations (within certain limits), and "family burial grounds." However, although that exemption provides that "The provisions of this chapter and chapter 2 shall not apply to [the above cemeteries]," I am not sure that is true of the definitions provision of Chapter 1, which defines "Cemetery" as "any land or structure in this state dedicated to and used, or intended to be used, for internment of human remains" [Tennessee Code Annotated, ' 46-1-102(1)], and "Internment," as "any lawful disposition of the remains of a deceased person as provided by law." [Tennessee Code Annotated, ' 46-1-102(13)]
But whatever the outcome of that question, in Stoker v. Brown, 583 S.W.2d 765 (Tenn. 1979), even a family burial plot on private property is a cemetery, to which the relatives of the people buried there were entitled to have access, even though no official "dedication" of the plot as a cemetery could be shown, and the last person buried there was in 1926. The court declared that "Ordinarily, dedication is considered to be the intentional appropriation of property for use by the public ...." Nevertheless, in this state and others it has long been recognized that the owner may, without a deed "set apart" a portion of his land for use as a family cemetery [citing several cases, including Hines v. State, 149 S.W. 1058 (1911)]. [At 766]
In Hines v. State, it had been said that:
.... express reservation of an existing private burial ground was unnecessary; that a reservation was implied and that the presence of gravestones, etc. was evidence of the cemeteries existence. The court spoke of the land as being "dedicated" to family burial purposes. The Court said that the graves were there to be seen and, thus, the purchaser was charged with notice of the "dedication" to burial purposes. [At 766]
The existence of the gravestones in the disputed territory in Stoker v. Brown was also enough to establish the "dedication" of the private burial plot.
The point of Stoker v. Brown and Hines v State, for your City's purposes, is to point out that when a person is interred on a private lot or plot of ground that person sets aside for that purpose, he or she is intended in a cemetery. That conclusion is also supported by 75 A.L.R. 2d59, Private or family cemeteries.
It is the law generally, that it is within the police power of municipalities to regulate the disposal of dead bodies, including the place of their interment, and cemeteries. [See 7 McQuillin, Municipal Corporations, ' 24.267 (3rd ed.), and 3 American Law of Zoning, ' 18:28 (5th ed.) That is no doubt true of your City. The city can prohibit the burial of bodies in back yards within the city, either by adopting an ordinance prohibiting such burials, or it could do so by passing a zoning ordinance regulating the establishment of cemeteries. I have been unable to find a copy of the city's zoning ordinance in MTAS files or on Google. But I understand from a telephone conversation I had with you yesterday that the city does have a zoning ordinance, and that it provides that cemeteries are allowed in all districts as a special exception.
It may be that the wish of the person to be buried in his backyard in your city applies to a plot of land on that property already "dedicated" as a private family cemetery. If that is the case, we will need to determine where he is entitled to be buried there from that perspective. However, if he simply wants to be buried in his backyard in one of the zoning districts of the city 'presumably, a residential one' he is not entitled to be buried there.
Even if the city wished to grant a variance to allow the person to be buried in his back yard, or to rezone his property to allow him to be buried in his back yard, I have no doubt that such action would be treated as an abuse of the city's zoning discretion. Generally, I suspect that the burying of people in their back yards in cities, except in already-established cemeteries, would be frowned upon by the courts today. As one court in another state said with respect to allowing the establishment of cemeteries in residential districts, cemeteries "cast a pall of gloom over neighborhoods." The same thing may not apply to a single grave in a single back yard, but the effect would probably be similar. Moreover, such a grave would attract the attention of curiosity seekers, and have a detrimental impact upon property values. It could even rise to the level of a nuisance.
There is another problem with private family cemeteries to which Stoker v. Brown, above points: the relatives families of the person or persons buried in such cemeteries are apparently entitled to the right of access to the cemetery long into the future. That access may not create many problems in rural areas, but in cities, even small ones, they invite access difficulties