H. B. 2216


(By Mr. Speaker, Mr. Chambers and Delegates Schoonover,
Mezzatesta, Campbell, Ashley, Johnson and Burk)

[Introduced February 22, 1993; referred to the
Committee on the Judiciary.]



A BILL to amend article five, chapter thirty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section seven, relating to establishing a cause of action to create a means of access to neglected, abandoned or inaccessible cemeteries so that they may be maintained and preserved.

Be it enacted by the Legislature of West Virginia:
That article five, chapter thirty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section seven, to read as follows:
ARTICLE 5. CEMETERIES.

§35-5-7. Creation of easements to abandoned, neglected or inaccessible cemeteries or burial lots.

For the purpose of permitting the care, upkeep, maintenance and management of abandoned, neglected or inaccessible cemeteries or burial lots, as well as to provide for access to thesecemeteries, the descendants of persons buried in these cemeteries, civic organizations or other interested parties may petition the county commission for the county in which the cemetery is situate to file with the circuit court of the county an action to establish an easement for access to the cemetery. The county commission, upon a finding that the cemetery is inaccessible or in need of maintenance and that no other reasonable alternative exists, may require the petitioners to post a bond to cover anticipated costs of acquisition as well as the expenses hereinafter described, and file said action with the circuit court for a determination of the necessity for and location of the easement. If established by the court, the easement shall be reasonable and shall not intrude unnecessarily upon the property of adjacent landowners. In the event private property adjoining the cemetery is deemed necessary for the access road, the owner of the property so taken shall be reasonably compensated by the parties seeking the easement. The compensation shall include the cost of removing, relocating or modifying existing fences, walls, gates or other borders, as well as other costs and expenses, including attorney's fees. Once the easement is established, the general public shall have a right of access and a right to proceed upon and across the same for the purpose of preservation, improvement or embellishment of the cemetery, including the repair of tombs, mausoleums, gravestones, monuments, fences, railings, walkways or other structure or structures, and the trimming or removing of any debris thereon.


NOTE: The purpose of this bill is to create a cause of action to allow certain parties access to neglected, abandoned or inaccessible cemeteries for maintenance and preservation purposes. The bill also provides for reimbursement of property owners for certain costs.

This section is new; therefore, strike-throughs and underscoring have been omitted.