Code of Virginia

Code of Virginia
Title 57. Religious and Charitable Matters; Cemeteries
8/11/2020

Article 4. Abandonment; Removal of Remains.

§ 57-35.35:1. Definitions.

As used in this article, unless the context requires a different meaning:

"Previously unidentified cemetery" means a cemetery that, notwithstanding the fact that it is known to researchers, members of the community, or descendants of those buried there, has not been identified in the Virginia Cultural Resources Information System or has not been officially located in the land records of the locality.

2019, c. 195.

§ 57-35.36. Cemeteries owned by localities; good faith effort required prior to interment.

Notwithstanding the exemptions provided for in § 54.1-2312, a cemetery operated by a county or city shall keep accurate records of the ownership of cemetery lots and shall make a good faith effort to ensure, prior to interment, that the ownership of a cemetery lot is vested in the decedent's estate or that permission for the interment has been granted by the person holding such ownership. This section shall not apply to lots or cemeteries which are dedicated for the burial of indigents.

1991, c. 614.

§ 57-36. Abandoned or previously unidentified graveyards may be condemned; removal of bodies.

A. When a graveyard, wholly or partly within any locality, has been abandoned, is unused and neglected by the owners, or is a previously unidentified graveyard, and such graveyard is necessary, in whole or in part, for public purposes, authorized by the charter of such locality, or by the general statutes providing for the government of localities, such locality may acquire title to such burying ground by condemnation proceedings, to be instituted and conducted in the manner and mode prescribed in the statutes providing for the exercise of the power of eminent domain by localities. The locality may continue to maintain all or a portion of the burying ground as a graveyard.

B. The court taking jurisdiction of the case may, in its discretion, require the locality to acquire the whole burying ground, in which event the locality may use such part thereof as may be necessary for its purposes and sell the residue. The court, however, shall direct that the remains interred in such graveyard, if possible so to do, be removed to some repository used and maintained as a cemetery.

C. Should any locality, having acquired by any means land on which a previously unidentified or abandoned graveyard is located, including lands acquired in accordance with § 22.1-126.1 for educational purposes, initiate plans to use that land for purposes other than to maintain the graveyard, such locality shall, prior to completion of said plans, develop and engage in active public notice and participation regarding efforts to avoid adverse impacts to the graveyard or to remove the remains interred in such graveyard to an alternative repository. Such public notice and participation shall include, at minimum, publication of at least one notice in a local newspaper of general circulation, notice posted at the site of the graveyard, and notice to and consultation with any historic preservation or other such commission, as well as area historical and genealogical societies, and at least one public hearing. The locality shall make a good faith effort to identify and contact living descendants of the persons buried in the graveyard, if known. In addition, the locality is encouraged to post such notice on the Internet, including appropriate websites and through the use of social media, and to consult with the Virginia Department of Historic Resources. Having given all public comment due consideration, the locality is encouraged first to adjust plans to maintain the graveyard as part of the larger land use plan or, if that is not feasible, to request permission to proceed with removal through the court or through the Virginia Department of Historic Resources should archaeological removal be appropriate. In any event, any removal of remains should be given all due care and respect, as should the selection of and reburial in another cemetery. This requirement for public notice, consultation, consideration of comments, and following due process for removal of human remains shall apply in cases where the presence of a previously unidentified or abandoned graveyard is discovered during either the planning or construction phases of a project.

D. Any locality that has acquired by any means land on which a previously unidentified or abandoned cemetery or gravesite of any Virginian held as a slave at the time of his death is located shall notify the Virginia Department of Historic Resources of the location of such cemetery or gravesite. The Department shall record the location of the cemetery or gravesite. A listing of the locations of all previously unidentified or abandoned cemeteries and gravesites of Virginians held as slaves at the time of their deaths that have been provided to the Department shall be maintained by the Department as a public record.

Code 1919, § 54; 1985, c. 95; 2010, c. 617; 2014, c. 588; 2019, c. 195.

§ 57-37. Costs of suits, removal and reinterment; how surplus above costs disposed of.

In the event that the proceeds from the condemnation are insufficient to defray the costs of the suit and removal, and reinterment of the remains, then the additional amount necessary therefor shall be paid by the county, city or town instituting the suit. If, after the payment of proper costs, there be any residue, the same shall be paid to the parties entitled thereto, and if there be any parties unknown who are entitled to such proceeds, the county, city or town shall hold such amount in trust for the parties so entitled, but such county, city or town shall not be charged with any interest on such amount so held. If the amount so held is not claimed by or paid to the parties entitled thereto within seven years from the date of sale of such burying ground, or part thereof, then such amount shall pass to and become a part of the Literary Fund of the Commonwealth, as provided by the statute of escheats.

Code 1919, § 55; 1985, c. 95.

§ 57-38. Exemption from §§ 57-36 and 57-37.

Sections 57-36 and 57-37 shall not apply to any graveyard or cemetery owned by a church, or controlled by trustees, in which sections are sold.

Code 1919, § 55.

§ 57-38.1. Proceedings by landowner for removal of remains from previously unidentified or abandoned family graveyard.

The owner of any land on which is located a previously unidentified graveyard or an abandoned family graveyard, and there has been no reservation of rights in such graveyard, or when the beneficiaries of any reservations of rights desire to waive such rights, and in which no body has been interred for twenty-five years may file a bill in equity in the circuit court of the county or in the circuit or corporation court wherein such land is located for the purpose of having the remains interred in such graveyard removed to some more suitable repository. To such bill all persons in interest, known or unknown, other than the plaintiffs shall be duly made defendants. If any of such parties be unknown, the plaintiffs shall undertake active, good faith efforts to locate interested parties including, at a minimum, publication of at least one notice in a local newspaper of general circulation, notice posted at the site of the graveyard, and notice to and consultation with any historic preservation or other such commission, as well as area historical and genealogical societies. In addition, the plaintiff is encouraged to post such notice on the Internet, including appropriate websites and through the use of social media, and to consult with the Virginia Department of Historic Resources. Upon the case being properly matured for hearing, and proof being made of the propriety of the removal, the court may order the removal made and the remains properly deposited in another place, at the expense of the petitioner. Such removal and reinterment shall be done with due care and decency.

In determining the question of removal the court shall consider the historical significance of such graveyard and shall consider as well the wishes of the parties concerned so far as they are brought to its knowledge, including the desire of any beneficiaries of any reservation of rights to waive such reservation of rights in favor of removal, and so considering shall exercise a sound discretion in granting or refusing the relief prayed for.

1966, c. 444; 1970, c. 377; 2014, c. 588; 2019, c. 195.

§ 57-38.2. Proceedings by heir at law or descendant for removal of ancestor's remains from previously unidentified or abandoned family graveyard.

Any heir at law or descendant of a deceased person interred in a previously unidentified graveyard or an abandoned family graveyard in which no body has been interred for 25 years may file a bill in equity in the circuit court of the county or city wherein the land is located for the purpose of having the remains interred in the graveyard removed to some more suitable repository. The owner of the land, any beneficiaries of any reservation of rights, and all other persons in interest, known or unknown, other than the plaintiffs shall be duly made defendants. If any of such parties are unknown, notice may be given by order of publication. Upon the case being properly matured for hearing, and proof being made of the propriety of the removal, the court may order the removal and the remains properly deposited in another place, at the expense of the petitioner. The removal and reinterment shall be done with due care and decency.

The bill may be filed and relief granted regardless of whether there has been a reservation of rights in the graveyard and regardless of whether the beneficiaries of any reservation of rights desire to waive their rights. In determining the question of removal, the court shall consider the historical significance of the graveyard and the wishes of the parties concerned so far as they are brought to its knowledge, including the desire of any beneficiaries of any reservation in rights, and shall exercise sound discretion in granting or refusing the relief prayed for.

1990, c. 562; 2019, c. 195.

§ 57-39. Proceedings for removal of remains and sale of land vacated.

When the owners of a graveyard, or the trustees of a graveyard left in trust, by reason of the infancy or the disability of any of them or by reason of their being numerous or partly unknown, or of the residence of any of them being unknown, cannot or cannot conveniently unite in making disposition of the same, any one or more of such owners or trustees, or, in any event, any county, city or town of this Commonwealth, if a private graveyard or pauper's graveyard (potter's field), which has been dedicated for such use either by written instrument, or by use by the public for such purpose, be within the boundaries thereof and the private graveyards be not connected with any church or church property and said graveyards be in a condition of neglect or disuse, or in the case of a pauper's graveyard is in a condition of neglect, or disuse, or is located in a location which is inappropriate for its continued use as a burial ground, may file a bill in equity in the circuit court of the county or in the circuit or corporation court of the corporation wherein the graveyard is located for the purpose of having the remains interred in such graveyard removed to some more suitable repository, and the land thus vacated sold and the costs of removal and interment and the costs of suit including reasonable attorney's fees paid out of the proceeds of the sale. To such bill all owners of the graveyard or any person having a right therein, and in the case of a pauper's graveyard the dedicator thereof, his heirs or successors in interest, if known, and if not known, such unknown parties shall be made defendants by the name of "person or persons unknown who may be the owners, heirs, or successors in interest of the unknown dedicator of the pauper's graveyard which is the subject of this suit," other than the plaintiffs shall be duly made defendants.

The bill shall show the title of the land, the interest of all parties, so far as known, and the reasons why relief is sought and that it is practicable. And upon the case being properly matured for hearing, and proofs being adduced of the propriety of the removal, the court shall have power to have the removal made and the remains properly deposited in another place, and to make sale of the grounds vacated by the removal and to have the costs of removal and reinterment, including the costs of the new place of interment, and of putting it in all respects in suitable condition and erecting upon it suitable memorials and the costs of the suit paid out of the proceeds of the sale.

Such removal and reinterment shall be done with due care and decency. But, unless the bill be filed by a city, town or county, the court shall not order such removal and reinterment until due and sufficient guaranty be given it that the proceeds of sale of the grounds proposed to be sold will be sufficient to meet all costs that may be incurred unless some party to the cause or other person gives due security to make good any deficit.

In determining the question of removal or sale the court shall consider as well the wishes of the parties concerned so far as they are brought to its knowledge as the proofs, and so considering shall exercise a sound discretion in granting or, refusing the relief prayed for, except that in case the bill be filed by a city, town or county, the court shall be guided by considerations of public welfare.

The court may distribute any surplus of the proceeds of sale according to their rights among the owners of the ground sold or the parties entitled thereto, and in the case of the sale of a pauper's graveyard wherein the original owner, his heirs and successors in interest are unknown, or there has been a dedication of said land for pauper's graveyard, the court, after the due consideration, upon application of the county, city or town may permit the proceeds of the sale to be utilized for other public uses of a charitable nature including the purchase of land for parks, public offices and other municipal uses including the construction of buildings thereon.

No graveyard to which there is no right-of-way except over or through some person's land shall be sold hereunder without the consent of such person.

1946, p. 407; Michie Suppl. 1946, § 58a; 1968, c. 83.

§ 57-39.1. Improvement of abandoned and neglected graveyards.

When the owners of any private graveyard, not connected with any church or church property, abandon the graveyard and allow it to fall into a condition of neglect and disuse, so that it is unsightly and thereby lessens the desirability and value of adjacent land, and the owners fail or refuse, when requested by the owner of adjacent land or when requested by the local governing body of the county, city or town wherein the private graveyard is located, to remedy such condition of neglect and put the graveyard into suitable condition, then any owner of adjacent land or the local governing body may file a bill in equity in the circuit court of the county or city wherein the graveyard is located, for the purpose of requiring the graveyard to be placed in a suitable condition. The owners of the graveyard or any person having a right therein shall be made defendants to such court proceedings.

The court shall not enter an order requiring the owners of a graveyard in which a grave or entombment right has never been sold to improve it or place it in a suitable condition. However, after hearing the evidence the court may allow the petitioners, at their own expense, to improve the graveyard and place it in suitable condition and may also require bond to ensure that the petitioners will not injure or remove any tomb, monument, gravestone, grave marker, or vault without having first obtained court approval. Acting pursuant to court order, the petitioners may thereafter enter upon the land and improve the graveyard and place it in suitable condition. The costs in any case involving a graveyard in which a grave or entombment right has never been sold shall be paid by the petitioners.

In any case involving a graveyard in which a grave or entombment right has been sold, the court shall determine whether the owners or petitioners shall pay the costs of improving the graveyard and may require bond to insure against injury or removal of any tomb, monument, gravestone, grave marker, or vault without court approval.

1950, p. 91; 1986, c. 55; 1990, c. 675.

§ 57-39.1:1. Recovery of abandoned interment rights; procedure; rights of owner of record.

A. When interment rights that have been granted by the owner of a cemetery are not used for a period of 50 years or more, they shall be deemed abandoned and revert to the owner of the cemetery, provided he has complied with the provisions of subsections B, C, and D. For the purposes of this section, "interment" means the same as such term is defined in § 54.1-2310.

B. If the last known address of the record owner of an interment right or his heirs, assigns, or next of kin is known to the owner of the cemetery or may reasonably be ascertained by the owner of the cemetery, the owner of the cemetery shall send notice by certified mail, return receipt requested, to the owner of the interment right, his heirs or assigns, and any next of kin at such address. The notice shall request the owner's current address, if different from the last known address, and the addresses of the owner's heirs or assigns. If a written response is received from the person to whom notice was sent by the cemetery, the interment rights shall not be deemed abandoned and such rights shall continue for an additional 50 years from the date the response was received by the cemetery. If notice is returned undeliverable or if no response is received by the cemetery within 30 days after notice was sent, the cemetery shall publish a general notice pursuant to subsection D in a newspaper of general circulation (i) in the county or city where the cemetery is located and (ii) in the county or city of the last known address of the record owner of the interment rights.

C. In cases in which the last address for the last record owner of an interment right or his heirs, assigns, or next of kin is not known to and cannot reasonably be ascertained by the owner of the cemetery, the cemetery owner shall publish a notice, once a week for four consecutive weeks in a newspaper of general circulation in the county or city where the cemetery is located pursuant to subsection D.

D. Notice required to be published pursuant to subsections B and C shall contain the name and business address of the cemetery and the name of the last record owner of the interment rights and shall state the intent of the cemetery owner to declare the interment rights abandoned. If no response is received by the cemetery by or on behalf of the record owner or his heirs or assigns within 120 days after publication of the last required notice, the interment rights shall be deemed abandoned and shall revert to the owner of the cemetery. If a written response is received by the cemetery, the interment rights shall not be deemed abandoned and such rights shall continue for an additional 50 years from the date the response was received by the cemetery.

E. If, within 30 years after the interment rights have been deemed abandoned, the record owner, or his heirs or assigns, can prove to the cemetery or a court of competent jurisdiction that he is entitled to the interment rights, the cemetery shall, at no cost, provide a right of interment similar to the one that was abandoned.

1997, c. 74; 2012, c. 691.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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