WVC 37 -
CHAPTER 37. REAL PROPERTY.
WVC 37 - 13 -
ARTICLE 13. REMOVAL, TRANSFER AND DISPOSITION OF REMAINS IN
GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
WVC 37 - 13 - 1
§37-13-1. Jurisdiction to permit and order removal, etc.
The circuit court of any county shall have jurisdiction and
authority to permit and order the removal, transfer and
reinterment, or other disposition, of remains in any graves
located upon privately owned land within the boundaries of such
county under the provisions hereinafter set forth: Provided,
That the provisions of this article shall not apply to any grave
or grave area where title or color of title to the same exists as
a matter of public record in any person or persons not a
plaintiff or plaintiffs instituting an action pursuant to this
article: Provided, however,
That when title or color of title of
public record to such grave or grave area exists in such
plaintiff or plaintiffs, the provisions of this article may be
available in addition to any other rights or remedies provided by
law for the removal, transfer and disposition of remains in
graves or grave areas.
WVC 37 - 13 - 1 A
§37-13-1a. Improvement, construction or development upon privately
owned lands containing graves.
No improvement, construction or development shall commence
upon privately owned lands on which a cemetery or graves are
located if such improvement, construction or development would
destroy or otherwise physically disturb the cemetery or graves
located on the land unless the owner first files a petition in
accordance with the provisions of section two of this article and
an order is entered pursuant to section five of this article
providing for the disposition of the remains.
WVC 37 - 13 - 2
§37-13-2. Action; contents of petition.
Any owner of private lands, may, as plaintiff, institute an
action for the purposes set forth in section one of this article
by filing a petition before the circuit court of the county in
which the lands affected are located. Such petition shall show
the title to such lands, the condition of the graves in question,
the interests of all persons in such lands and in the remains in
such graves, so far as known, the reasons why removal is sought,
and the proposed disposition of such remains. The petition shall
further show that plaintiffs have made reasonable and diligent
effort to ascertain the identity of each deceased and each
deceased's surviving next of kin, heirs-at-law, administrator,
executor or personal representative. The court may, if deemed
necessary, appoint a guardian ad litem to protect the interests
of known or unknown persons in interest, whether living or dead.
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§37-13-3. Parties; notice.
All owners, lessees and other persons having an interest in
such lands, other than plaintiffs, and also the surviving next of
kin, heirs at law, administrator, executor, or personal
representative of each deceased, so far as can be determined
through reasonable and diligent effort, shall be made defendants
in such action. Insofar as possible all defendants shall be
served with notice of the institution of the action and the date
of the first hearing upon the same, such service to be made in
the same manner provided by law for the service of process in
other civil actions. If the address of any defendant be unknown,
or, if there be any unknown next of kin, heirs at law,
administrator, executor or personal representative of any known
or unknown person whose remains may be interred within any such
grave, then, in such event, a copy of said notice shall be
published prior to the hearing upon the same as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county.
WVC 37 - 13 - 4
§37-13-4. Hearing; discretion in granting or refusing relief;
No sooner than three weeks from the filing of such petition
the court shall take evidence upon relief sought, together with
any evidence presented in opposition thereto. In granting or
denying such relief the court shall consider, as well as other
evidence adduced, evidence as to the wishes of all persons
concerned, whether living or deceased, and shall exercise a sound
discretion in granting or refusing, in whole or in part, the
relief sought. If the court is satisfied with the propriety of
the relief sought by plaintiffs it shall enter an order granting
the same, either in whole or in part.
WVC 37 - 13 - 5
§37-13-5. Procedure upon removal.
Such order permitting removal, transfer and disposition of
remains in any grave shall provide that the same shall be done
with care, decency and reverence for the remains of the deceased,
may require that the services of a licensed funeral director
shall be utilized and may be upon any other terms and conditions
as the court may deem fit and proper, including the method and
manner of disposition of such remains.
WVC 37 - 13 - 6
In the event that the plaintiff or plaintiffs shall be
granted the relief sought, then all costs of such action shall be
borne by plaintiffs. In the event that such relief is not
granted, or is granted only in part, then such costs may be
allocated between the parties as the court shall deem equitable
and just. In any event wherein any relief is granted, the costs
of removal, transfer and disposition shall be borne by the
plaintiffs, including the cost of erecting appropriate memorials
to the deceased as the same may be ordered by the court.
WVC 37 - 13 - 7
§37-13-7. Remedy herein provided cumulative.
This article and the rights and remedies herein provided for
shall be cumulative and in addition to other existing rights. The
right of eminent domain and the remedy of condemnation of lands
shall not be affected hereby. This article shall not apply to
burial grounds governed by the provisions of article five, chapter
thirty-five of this code or by the provisions of section eight-a,
article one, chapter twenty-nine of this code.