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.