A Relatively Short Summary of the Fire Place History Club's
"Notice of Motion"
By Richard Thomas
After the Town had filed its Verified Answer to the Club's Verified Petition,
the Fire Place History Club filed a "Notice of Motion"
[*] indicating its intention to move the
Court for an order directing Summary Judgment in favor of the Club.
In that Notice of Motion, the Fire Place History Club contended that all
necessary factual issues are settled or so one-sided that they need not be
The Town had claimed that it had no obligation to remove the grass and weeds
from nine of the ten cemeteries on the Fire Place History Club's list because
these nine graveyards were "private cemeteries." The Town further implied
that in order to be a public cemetery, a cemetery must have been one formed by a
cemetery association (or, at least, the Town implied that in order for any of
the cemeteries on the Club's list to have "a public nature," they must have
originally operated under the cemetery association laws of the State of New
The Club's Notice of Motion made the following points:
1. The Town had contended that it is only through the sale and purchase of
mapped lands or plots to the public, such as provided for in the Rural Cemetery
Act of 1847, that a cemetery can be rendered "public." The Rural Cemetery
Act of 1847 was the first general cemetery association law passed in New York
State. In the motion, the Fire Place History Club showed that the history
of Section 291 (Town Cemetery Law) pre-dates that of cemetery association law by
several decades. The first sentence of the current Section 291 derives
directly from a Revised Law of 1828 (which itself was a re-enactment of a law
passed in 1826). When that law became effective, it applied to cemeteries
that had existed in 1813 and earlier. The Town had stated that the
provisions of Section 291 applied only to "public" cemeteries, so there must
necessarily be conditions that can cause a cemetery to have "a public nature"
other than the single method stated by the Town; that is, the "sale and purchase
of mapped lands or plots to the public." The sale of plots to the public
became an activity sanctioned by law long after the first sentence of Section
291 was written, a sentence which has changed very little in its wording over a
span of 182 years.
2. The Fire Place History Club then described three other methods by which a
"private cemetery" might acquire "a public nature."
a. A cemetery acquires "a public nature" when it is purchased by a public
governmental entity. A "private cemetery" can no longer be "private" if
it no longer has a "private" owner. One of the cemeteries on the Fire
Place History Club's list, the Rose cemetery, is on land owned by the Town.
In its Verified Answer, the Town acknowledged that it had a duty to care for
that cemetery. In its Verified Answer, the Town had referenced an
Opinion of the State Comptroller. In that opinion, the State Comptroller
stated that even though the governmental entity owning a cemetery might not be
the Town, it was still the Town's responsibility, under Section 291, to remove
the grass and weeds and preserve, care for, and fence the cemetery.
Section 291 places the obligation of preserving and maintaining such
cemeteries on the Town, even when the property on which they are located is
not owned by the Town. Section 291 places the duty on the Town of caring
for such cemeteries, "by whomsoever owned." Four additional cemeteries
on the Fire Place History Club's list were acknowledged by the Town to be
owned by other governmental entities. The Town claimed it had no
responsibility for caring for these cemeteries, but the Opinion of the State
Comptroller shows that claim to be invalid.
b. A cemetery acquires "a public nature" when the property where it is
located reverts to the people of the State of New York as a result of the
title having failed "from a defect of heirs." Under the Abandoned
Property Law of the State of New York, a cemetery on a property for which no
one any longer holds the title escheats to the people, and thus it acquires "a
public nature." The "public nature" is acquired upon there being a
defect of heirs, not when some public agent files to acquire the title to the
property for the State of New York. In fact, no public agent can make
such a filing until after the property has reverted to the people. So
the "state of having a public nature" can exist for a cemetery whether or not
any public agent may have claimed title to it for the state; that "public
nature" exists from the time when there existed "a defect of heirs" — at that
moment, the land "reverted to the people." Land that has reverted to the
people is undeniably public land, "by whomsoever owned," and when such land is
a cemetery, it is the duty of the Town to remove the grass and weeds from it
and preserve, care for, and fence it. Four of the remaining cemeteries
on the Club's list were declared in an affidavit filed by the Town to have no
known owners. A burial ground can be private only if there exists a
private owner who controls who may be buried in it and regulates access to it.
The Town is unable to show that there are any longer any living persons who
hold title to any of the four cemeteries. Thus, these properties have
reverted to the people and have "a pubic nature." The cemeteries on
those properties, being owned by the people, are public cemeteries which the
Town must maintain and preserve.
c. A cemetery can acquire "a public nature" by "public user." An
opinion of the State Comptroller in 1965 affirms that a cemetery may become
public by "public user." That opinion implies that use of a cemetery by
the public for a period of fourteen years can cause a cemetery to take on "a
public nature." Unless an owner takes some positive action "amounting to
an interruption to the 'adverse user,'" the continued enjoyment and use of the
cemeteries by the public over an extended period of time can establish "a
public easement interest" in them. The remaining cemetery on the Club's
list was shown to be just such a cemetery, and therefore one that the Town was
obligated to maintain and preserve. In fact, all ten cemeteries had been
shown by the Town's own actions to have been adopted by the Town through its
caring for and maintaining them from as early as 1937. The public had
continued to use the cemeteries even after the Town ceased caring for them, so
the public user easement had not been extinguished. All ten cemeteries
were cemeteries of "a public nature" based on this fact alone (regardless of
whether or not any heir might someday be found). These cemeteries are
cemeteries, by whomsoever owned, for which the Town must remove the grass and
weeds and which the Town must preserve, care for, and fence.
Note: In addition to the three methods given above through which a
cemetery may acquire "a public nature," and the single method given by the Town
— through a cemetery association operating under the laws for such associations
passed in 1847 and later, there is a fifth way, through a special act of the New
York State legislature. This fifth method is represented by an act
incorporating the Westfield cemetery in 1843 and by an act reviving the Utica
Cemetery Association in 1844.
* New York Supreme Court, 25
January 2010, Central Islip, NY, Index No. 09-28006.
16 September 2013