A battle over property rights and government authority is being waged in the small town of Stevenson, Alabama. In 2009, James Davis buried his wife Patsy Ruth Davis in their front yard in a plot that looks like a garden with a tombstone. After the city brought a suit against him, a county judge ruled that because he was not granted a permit, he had to disinter his wife and bury her in a legal cemetery. Mr. Davis appealed his case. Now, the main question that the Alabama Court of Appeals had to decide is whether or not Patsy’s gravesite constitutes a family plot or a cemetery. However, even if it considered a family plot, the city may still be able to regulate it if it poses a hazard or drags down property values. This is where a line needs to be drawn, hopefully one that prevents the government from controlling where people can establish family gravesites.

Mr. Davis’ main mistake in this case is that he applied for a cemetery permit and was subsequently denied. He did not realize that a family plot did not require the same approval, as he is the owner of his estate and can therefore “devote a part of his premises to the burial of his family or friends,” according to the Alabama Supreme Court in Kingsbury v. Flowers, 65 Ala. 479, 39 Am.Rep. 14. The Court in Kingsbury went on to assert that burying deceased loved ones on one’s estate “is but a just exercise of [one’s] dominion over [one’s] own property.” Furthermore, the Supreme Court provided a fairly loose definition of what a family burial plot was, writing that it had to be “a place of burial, being designated by proper markers” on a private estate, Heligman v. Chambers (1959). The Court of Appeals should find that Mr. Davis’ plot fits these guidelines. It is also a matter of common sense, since one grave does not a cemetery make.

This isn’t the main issue, though, as family burial plots are found throughout Alabama. The city really worries that having one on a residential lot on a main street could lead to problems. In other words, they feel it is a threat because it is not on rural acreage. In Laurel Hill Cemetery v. San Francisco (1910), the Supreme Court found that a local government could shut down a cemetery after claiming sanitation issues made it dangerous to the public health. The Court ruled that “if, on the hypothesis that the danger is real, the ordinance would be valid, [this Court] should not overthrow it merely because of [its] adherence to the other belief.” This case would seem to support the city’s position, as the Court of Appeals cannot challenge the city’s wisdom in dealing with the burial plot’s perceived threat. However, this case is different from Laurel Hill Cemetery in that the county health department found that the residential burial did not pose a health risk to the community. The court could thus rely on the better informed health department than the city officials who brought forth the suit.

The validity of the city’s other reasons for restricting what Mr. Davis may do on his property depends primarily on the appearance of the gravesite and its upkeep. The city worries about what the plot would do to the property value and about who will ultimately be responsible for its long-term care. However, there are other family plots within the city limits and the city has not tried to move them in the name of increasing property value. Furthermore, there are no Home Owners Association rules in place telling him in advance that he couldn’t bury his wife in the front yard. More importantly, the plot looks like a garden to a passerby. If the city places this much importance on preserving property values, then why haven’t they stopped people in Stevenson from putting up corrals for horses and pigs in their front yard? They are a lot less pleasant to look at. As for the grave’s upkeep, Mr. Davis’ children will bury him beside his wife and look after the property until they get too old to do so, at which time the grandchildren take it over. Under Heligman, these relatives will also be able to move the bodies if they want to sell the house to non-relatives, and if they relinquish that right, then the new owners can exhume the bodies: “The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority.” In any case, the property value and upkeep will not be an issue, or at least any more of an issue than a pigsty.

It isn’t just crazy conservative college students like me that feel that the government is overstepping in this case. Even George W. Westmoreland, a neighbor who got into a fistfight with Mr. Davis over the burial, doesn’t support the city telling homeowner’s what they can do on their own land:

“I don’t think it’s right, but it’s not my place to tell him he can’t do it. I laid my life on the line [in Vietnam] so he would have the right to do this. This is what freedom is about.”

Adam Ondo | University of Rochester | @JoplinMaverick