King v. Pender Cty.
King v. Pender Cty.
Opinion
*91 Marianne and Robert Orr ("Defendants") appeal from the trial court's grant of Plaintiffs' request for declaratory judgment. For the following reasons, we affirm.
I. Background
This matter stems from a long-standing dispute concerning a family cemetery located on Defendants' property. This dispute has been the subject of numerous appeals to this Court. A comprehensive factual background of the dispute is discussed in our opinion from the first appeal.
See
King v. Orr
,
The facts relevant to this appeal are as follows: Robert King, Margaret Whaley, and A. William King ("Plaintiffs") are descendants of the individuals interred in the cemetery (the "King Family Cemetery") located on property now owned by Defendants, who are not related to the King family. In 2012, the Pender County Board of County Commissioners granted consent to Defendants to disinter and relocate the bodies located in the King Family Cemetery pursuant to
Plaintiffs subsequently filed for a declaratory judgment, requesting that the trial court review the Commissioners' decision. In 2014, the trial court entered a declaratory judgment in favor of Plaintiffs, concluding as a matter of law that the Commissioners' grant of consent was based on an improper interpretation of
In August 2015, the trial court again entered a declaratory judgment in favor of Plaintiffs, specifically finding that Plaintiffs are "persons 'with legal right to the real property[,]' " and that "the cemetery is not an 'abandoned cemetery.' " Defendants timely appealed.
II. Analysis
We agree with the trial court that Plaintiffs are "person[s] with legal right to the real property" and that they have not "abandoned" the cemetery. Therefore, we affirm the judgment of the trial court.
When interpreting
*682
Here, we conclude that Plaintiffs are persons "with legal right to the real property," notwithstanding the fact that they do not hold a fee or leasehold interest in the real property. To hold that persons "with legal right" include only those who own the property would render the statute's requirement that the cemetery be "abandoned" almost meaningless: it is the
owner
who seeks consent from the government to remove the graves. Further, it would ignore the provision in the same Chapter providing a mechanism by which descendants can obtain a court order recognizing their right to access the property of another to visit and maintain the graves of their ancestors.
See
*93
Our Supreme Court has long recognized that persons, other than the holder of the fee and leasehold interest, may have "legal right to real property." For example, the right to hunt or fish on the land of another is considered an interest in real estate subject to our Statute of Frauds, set forth in
And, relevant to the present case, our Supreme Court has long recognized the right of certain descendants to enter upon the land of another to visit and maintain the graves of their ancestors, stating as follows:
Persons having a right to protect private cemeteries or graves therein may erect a fence around the cemetery[,] ... [and] any member of a family whose dead were buried in a family cemetery might enjoin the removal of a fence or an interference with any portion of the cemetery. However, any one or more of the heirs of persons buried in a private cemetery may prevent an interference with the rights held in common .
Rodman v. Mish
,
[A landowner] had not the right to remove the dead bodies interred there, or the memorial stones erected by the hand of affection and respect....Causes might arise that would require and justify the removal of dead bodies from one place of interment to another, but such removal should be made, with the sanction of kindred , in a proper way, or by legislative sanction.
State v. Wilson
,
Courts are reluctant to require disturbance and removal of bodies that have once been buried, for courts are sensitive to all those emotions that men and women hold for sacred in the disposition of their dead.... The aversion to disturbance of one's remains is illustrated by Shakespeare's choice of his own epitaph:
*94 Good friend, for Jesu's sake forbear
To dig the dust enclosed here.
Blest be the man that spares these stones,
And curst be he that moves my bones.
Mills v. Carolina Cemetery
,
More recently, in 1987, our General Assembly enacted
In the present case, Plaintiffs did obtain an order, pursuant to
III. Conclusion
Plaintiffs qualify as "person[s] with a legal right" to the King Family Cemetery. This litigation first arose as the result of Plaintiffs' attempts to maintain and protect the King Family Cemetery. The record contains evidence that Plaintiffs have consistently maintained or attempted to maintain the King Family Cemetery throughout the long history of this litigation and that Plaintiffs intend to continue to maintain it in the future. Therefore, because Plaintiffs qualify as "person[s] with legal right" and Plaintiffs have not abandoned the King Family Cemetery, we affirm the judgment of the trial court.
AFFIRMED.
Chief Judge McGEE and Judge STROUD concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.