Court Determines Use of Hilltop Cemetery

July 7, 2011 | Erin C. Herbold-Swalwell


The current owner of a farm asserted ownership of a cemetery plot located on the hilltop of the farm.  A prior owner of the farm, however, claimed ownership of the cemetery plot which contained the cremated remains of his parents.  Family members of the owners of the farm had been buried in the plot since 1775.  When the farm was sold in 1853, the deed conveyed the farm, but excluded the burial plot. This became known as the “cemetery exception” and was included in all subsequent deeds transferring the farm property.  In 1950, the prior owner’s parents purchased the property and upon their deaths the prior owner buried his parents in the plot without obtaining the permission of any previous owners. The land was transferred several times until 2008 when the current owner purchased the property. The deed to the property conveyed the farm minus the cemetery by warranty deed. The interest in the cemetery was conveyed via a quitclaim deed. 

The prior owner asserted rights in the cemetery and the current owner filed an action with the trial court to allow the cemetery plot to “revert to private property.” The trial court held that the reservation of the cemetery plot created only an easement that would protect the plot and allow heirs to visit the burial sites. The court concluded that the prior owner had a right to bury the remains of his parents in the cemetery plot and the current owner, as a subsequent purchaser, took the property subject to the reservation of the cemetery. 

On appeal, the Supreme Court of Vermont reversed the trial court’s ruling. The issue before the court was to determine the effect of the separation of the cemetery plot in the 1853 deed. If the original deed gave the grantors the cemetery plot in fee simple, then the prior owner never had any right to use of the plot. If the 1853 deed only created an easement for the original grantors, then the prior owner owned the cemetery land subject to the easement of the heirs. Looking at the original 1853 deed, the court concluded that the original grantor and grantees intended to convey the farm except the fee interest in the burial plot. The court held that the grantors created an exception for the land, rather than a reservation (which would indicate and easement interest). In this case, there was no way to ascertain the intent of the original parties (they were long since dead) so the only evidence left for the court to analyze was the document itself.  Consequently, prior owner had no right bury his parents in the plot.  In re Guite, 2011 Vt. 58 (Vt. Sup. Ct. 2011).