Orton A. Jones, Esq.
Mark G. Sergent, Esq.
Hedges, Jones, Whittier & Hedges Law Office of Mark G. Sergent
Spencer, West Virginia Spencer, West Virginia
Attorney for Appellants Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT, deeming himself disqualified, did not participate in the decision of this case.
JUDGE TOD J. KAUFMAN, sitting by temporary assignment.
This case is before this Court upon appeal of a final order of the Circuit
Court of Calhoun County entered on June 22, 1999. In that order, the circuit court found
that a cemetery located off Pink Road in Calhoun County, West Virginia, on property
owned by the Lester family, the appellants and defendants below, was dedicated to the
public. Accordingly, the circuit court appointed trustees to operate and govern the
In this appeal, the Lester family contends that the evidence does not support
the circuit court's finding that the cemetery was dedicated to the public. The Lesters
further assert that the circuit court erred by appointing a panel of trustees to govern and
operate the cemetery. This Court has before it the petition for appeal, the entire record,
and the briefs and argument of counsel. For the reasons set forth below, the final order
of the circuit court is reversed.
The cemetery which is the subject of this action was first established in 1885
with the burial of Joseph Wilson, a Civil War veteran. At that time, the farm on which
the cemetery is located was owned by Joseph Wilson's family. In 1895, the property was
transferred by deed to Elizabeth Lester. By then, there were four grave sites on the
property. However, the deed which transferred the property to Elizabeth Lester did not
mention the grave sites or the existence of a cemetery.
Thereafter, friends of Elizabeth Lester began asking for permission to bury
deceased family members in the cemetery. Both Elizabeth Lester and her son, Kenna
Lester, who inherited the property from his mother, allowed others in the community to
be buried in the cemetery. Kenna Lester's heirs, who are the appellants in this case,
acquired the property from him in 1972. They have continued to permit members of the
community to bury their loved ones in the cemetery. Thus, over the course of 110 years,
more than sixty people have been buried in the cemetery.
In 1979, Pearl Daugherty, who had relatives buried in the cemetery,
established a banking account to collect donations for upkeep of the cemetery. The Lester
family was not involved with the bank account,See footnote 1
but continued to maintain and take care
of the cemetery themselves. In 1991, Pearl Daugherty gave control of the bank account
to her niece, Linda McCartney, who is the appellee and plaintiff below in this action.
After Ms. McCartney took over the bank account, disputes over the cemetery began to
Ms. McCartney took the position that approval from the Lester family was
not needed before burying someone in the cemetery. As a result, at least one person was
buried in the cemetery without the permission of the Lester family. In addition to this
dispute, there was also disagreement between Ms. McCartney and the Lesters about
fencing the cemetery perimeter.See footnote 2
On October 26, 1998, Ms. McCartney filed this action in the Circuit Court
of Calhoun County against the Lesters alleging that the cemetery is a public cemetery
which was acquired from the Lesters by adverse possession. Ms. McCartney claimed that
she had standing to file the suit because she has relatives buried in the cemetery and
because she is the sole signatory on the bank account established by her aunt for
maintenance of the cemetery.
Following a bench trial, the circuit court found that Ms. McCartney had not
shown exclusivity of possession which is necessary to prove adverse possession.See footnote 3
However, the court did find that the cemetery was dedicated to the public long before the
parties to this action became involved in the matter. Accordingly, the circuit court
established a trust to oversee the use and operation of the cemetery pursuant to W.Va.
Code §§ 35-5A-1 to -8 (1973). In addition, the circuit court barred the parties from ever
serving as trustees. The circuit court further ordered that five of the remaining grave plots
be allotted to Ms. McCartney, and another five allotted to the Lester family. Finally, the
court ordered that a parking lot of sufficient size for eight vehicles be located outside the
cemetery on the Lesters' property.
The term dedication has been used to denote the setting aside of land for
public use, and it is well settled that land may be dedicated to the public for cemetery
purposes. 14 Am.Jur.2d Cemeteries § 14 (1964). The dedication may be made in writing,
but it is not necessary. Id. Thus, the fact that the cemetery has not been mentioned or
reserved in any deed is of no consequence.
To effectively dedicate land to public use, it must be shown that the land
owner intended to dedicate the land to public use and the public has accepted the same.
23 Am.Jur.2d Dedication § 23 (1983). While the intention to dedicate land for public
purposes may be implied from acts or conduct of the land owner, the evidence offered to
establish the dedication must be clearly proven. Id. In Syllabus Point 3 of Hicks v. City
of Bluefield, 86 W.Va. 367, 103 S.E. 323 (1920), this Court stated,
To make out a case of dedication of private property to public use by implication, the facts relied upon to establish it must be of such character as clearly show the owner intended such dedication, and they must be clearly and fully proved.
More recently, this Court, acknowledging that Hicks is still the law in this
State, explained that, It is well established that dedication of land for a public cemetery
requires, in addition to the acceptance and use by the public, an intention on the part of the
owner to dedicate. Concerned Loved Ones and Lot Owners Ass'n of Beverly Hills
Memorial Gardens v. Pence, 181 W.Va 649, 655, 383 S.E.2d 831, 837, (1989) (citations
omitted). This Court also stated in Pence that [t]he question of intent to dedicate private
property to public use is a factual question, unless uncontroverted, and must be determined
by the trier of facts, which is the circuit court judge or jury in this case. Id (citations
omitted). As this Court has noted, such factual determinations are subject to a clearly
erroneous standard of review. Fraternal Order of Police, Lodge Number 69 v. City of
Fairmont, 196 W.Va. 97, 100, 468 S.E.2d 712, 715 (1996) (providing that appellate
review proceeds under clearly erroneous standard whenever a trial court decides factual
matters that are essential to ascertaining a party's rights in a particular situation).
The record in this case shows that the circuit court heard several days of
testimony, admitted several documents into evidence, and even viewed the subject property
in an effort to determine the status of this cemetery. Unfortunately, a considerable amount
of the testimony focused upon the more recent events that occurred at the cemetery,
specifically the attempts by the parties to fence the cemetery's perimeter. Although the
record contains some testimony concerning how certain persons came to be buried in the
cemetery, the testimony is inconsistent with regard to the Lester family's granting of
permission to members of the community to bury their loved ones in the cemetery. While
some of the witnesses maintained that permission was always granted, others testified that
permission of the Lester family was not needed. In any event, simply granting permission
for members of the community to be buried in the cemetery does not necessarily show an
intention to dedicate the property to the public.
For instance, in MacCorkle v. City of Charleston, 105 W.Va. 395, 142 S.E.
841 (1928), this Court held that the mere use of a private alley by the public did not
establish that the owners of the alley vested any right in the alley to the public. In other
words, in order to establish that the alley had been dedicated to the public, the city needed
to show more than just a permissive use. See 23 Am.Jur.2d Dedication § 35 (1983). We,
of course, recognize that the permissive use in this case is quite different from that in
MacCorkle. However, this same principle of law has been applied in situations similar to
the case sub judice.
In Phipps v. Frances, 267 Ky. 203, 101 S.W.2d 924 (1937), the plaintiff
filed suit to enjoin a church from burying or permitting others to be buried on property she
had conveyed to it. One of the defenses asserted by the church was the fact that the
plaintiff had buried her sister on the property before she conveyed it to the church. The
plaintiff had also through express or implied consent allowed sixteen others to be buried
on the property. In holding that the plaintiff had not dedicated the property as a cemetery
for public use, the court stated:
A person may consent to a member of his or her family being buried in their yard or garden, but in no light of reasoning could it be said that such act would constitute a dedication of such premises as a public cemetery or burial ground. Not only so, but even if one should consent to the burial of a person of no kin to them on their premises, such use of the premises would be a permissive one and would not constitute a waiver of their right to object to any other body being buried on the premises.
Phipps, 267 Ky. at 207-08, 101 S.W.2d at 927.
Our review of the evidence in this case reveals no clear intention on the part
of the Lester family to dedicate this cemetery to the public. The evidence in this case
merely shows that the Lester family has graciously allowed members of their community
to be buried on their property for more than one hundred years. The Lesters do not
dispute that members of the community who have loved ones buried in the cemetery have
a right to visit, decorate, and care for the existing graves and gravestones. They simply
contend that they have not given up the exclusive right to determine who can be buried on
their property. We agree. Absent some other evidence, we do not believe that by granting
permission, even on a continual basis, to persons in the community to bury their loved
ones in this cemetery, it can be concluded that the Lester family dedicated this cemetery
to the public. Thus, the circuit court clearly erred in finding that the Lester family
dedicated this cemetery to the public and in appointing trustees to govern the cemetery.
Accordingly, the final order of the Circuit Court of Calhoun County entered on June 22,
1999, is reversed.