Can You Gate and Lock an Easement If You Provide Keys
My questions involve an easement in the state of: Virginia
There is a private family cemetery on my property. Over the last 30 years, the only time anyone ever drove to it, was for a funeral, or if (seldom) they ever wasnted to drive they asked for permission and a when granted were given a key to the gate, which they then had to return. The gate was always locked. No one ever drove without permission. Can I keep the gate locked so long as the one and only person insisting on driving has been provided a key? I need any case law that supports keeping the gate locked, so long as this person insisting on driving has a key.
Furthermore, did the first burial "Dedicate" a cemetery, and if so, did it grant vehicualr access, or simply a means of ingress and egress, which could be on foot.
Who owns the cemetery? Who controls who can be buried there?
Can I move the cemetery
Thank you.
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
The answers to your questions are in the Code of Virginia 57-38 which you can find and page through here:
http://leg1.state.va.us/cgi-bin/legp...00+cod+57-38.1
There is a further discussion here:
http://www.slideshare.net/jolenedhr/virginia-burial-law
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
Dear land Surveyor, That's what I thought too. however the opposing attorney has argued that it is case law prior to the enactment of the Code of Virginia that takes precedence. He further argued that they have the right to drive even though the case law does not specifically state that a motorized vehicle was allowed
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
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however the opposing attorney has argued that it is case law prior to the enactment of the Code of Virginia that takes precedence.
That's always good know. Why didn't you state that you were already up against an opposing attorney but came here as against getting your own attorney?
As Mr. K says, what's being cited? Do you plan to represent yourself in court against an attorney?
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
Case Law that prevents me from locking gates on my farm are based on the determination that when the first grave was used that a Right of Way /Easment was established and VA case law says that you can not lock the gates on the Right of Way, giving ne weight to the fact that the gates have been continuosly locked for 100 years.
Applicable statutes 33.1-202
"§ 33.1-202. Landowners may erect and maintain gates across private roads.
Any person owning land over which another or others have a private road or right-of-way may, except when it is otherwise provided by contract, erect and maintain gates across such roads or right-of-way at all points at which fences extend to such roads on each side thereof; provided, however, that a court of competent jurisdiction may, upon petition, where it is alleged and proved by petitioner that the gates have been willfully and maliciously erected, may require the said landowner to make such changes therein as may be necessary and reasonable in the use of said roads for both the landowner and the petitioner.
(Code 1950, § 33-119; 1952, c. 695; 1970, c. 322.)"
The code makes no mention of locks, the right to have or not to have them.
Craig v. Kennedy,
Virginia Case, the Supreme Court held that the Defendant, the servient landowner, could erect gates across an easement which traverses his property, but that gates must be unlocked.
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Opposing attorny also cites Ridgwell v. Brass Company
"Ridgwell v. Brass Company [sic] and that Court held that the owner of a servient estate are not entitled to maintain locks on gates which cross an easement."
Re: Easements to a Cemetery, Locking a Gate Across It, but Proving a Key to It
When you reference a case, you should give the actual citation - at a bare minimum, make sure you have the correct name.
If the statutory restrictions came into effect after the creation of the cemetery it may well be that certain of the statutory provisions do not apply; if you have more detail to share on that argument and the exact statutory provisions that the other party is arguing are inapplicable, please share the details. You can (and IMHO should) also discuss the issues, statutes and title history in more depth with a lawyer in your state.
In terms of your argument based on Sec. 33.1-202, nothing in that statute authorizes installation of a locked gate across an easement.Ridgwell v. Brasco Bay Corp., 254 Va. 458, 462, 493 S.E.2d 123, 125 (1997) involves a deeded right of way with a plat, express granting language, etc., so its a significantly different set of circumstances. Ridgwell mentions in an asterisked "footnote",
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Quoting Ridgwell v. Brasco Bay Corp., 254 Va. 458, 462, 493 S.E.2d 123, 125 (1997) (emphasis added)
Suggesting that absent a statutory right to lock a gate or something within the grant of an easement reserving such a right, the gate isn't to be locked.
Craig v. Kennedy, 202 Va. 654, 657-58, 119 S.E.2d 320, 322-23 (1961) held that a servient estate could install an unlocked gate across an easement obtained by prescription. It does not address circumstances under which a gate may be locked.
Consider also,
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Quoting Virginia Code, Sec. 57-27.1. Access to cemeteries located on private property; cause of action for injunctive relief; applicability
A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both. No landowner shall erect a wall, fence or other structure or device that prevents ingress and egress to the cemetery or grave, unless the wall, fence or other structure or device has a gate or other means by which ingress and egress can be accomplished by persons specified in this subsection. The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property. The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.
B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research. The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for the purpose of accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by a motor vehicle and the owner has given written permission to use the road or right-of-way of necessity.
C. Any person entering onto private property to access a gravesite or cemetery shall be responsible for conducting himself in a manner that does not damage the private lands, the cemetery or gravesites and shall be liable to the owner of the property for any damage caused as a result of his access.
D. Any person denied reasonable access under the provisions of this section may bring an action in the circuit court where the property is located to enjoin the owner of the property from denying the person reasonable ingress and egress to the cemetery or gravesite. In granting such relief, the court may (i) set the frequency of access, hours and duration of the access and (ii) award reasonable attorney fees and costs to the person denied such access.
E. The provisions of this section shall not apply to any deed or other written instrument that creates or reserves a cemetery or gravesite on private property.