Tuesday, June 2, 2009

Cemetery owners who wish to limit who may be buried must manifest the specific intent

EDWIN O. MARTIN, ET AL. v. CARL NASH, ET AL. (Tenn. Ct. App. March 23, 2009)

Members of family in whose name a cemetery was established brought suit against owners of property surrounding the cemetery seeking removal of a cloud upon their title to the cemetery, injunctive relief and damages. The trial court declared the boundaries of the original cemetery and limited those entitled to be buried therein to the family members; allowed that members of the general public were permitted to be buried in land added to the original cemetery tract; and appointed trustees to manage the cemetery as established under both conveyances. Family members appeal, contending that trial court erred in setting the cemetery boundary; in disregarding proof of cost of repairing fence which had been removed by one defendant; and in refusing to hear testimony as to the trust fund established for the maintenance of the cemetery. Finding no error, we affirm the decision of the trial court in all respects.

Opinion may be found at the TBA website:

“The preponderance of the evidence shows two separate conveyances of land for purposes of establishing the cemetery, one in 1930 and one in 1995. The proof is also clear from the 1995 deed, as well as the testimony of Mr. Nash, that there was no limitation of those who could be buried in Phase II to the descendants of A. A. Martin. The entire evidence shows Mr. Nash’s intention, after he acquired the property, to respect the establishment of the cemetery in 1930, to preserve and maintain it, and to expand it to allow for increasing numbers of Martin family members and others who were buried around the original cemetery.” Id.