Bethesda African Cemetery Coal. v. Housing Opp. Comm.

Bethesda African Cemetery Coalition, et al. v. Housing Opportunities Commission of

Montgomery County, No. 18, September Term, 2023. Opinion by Biran, J.

COMMON LAW – BURIAL GROUNDS – THE COMMON LAW OF BURIAL

PLACES – The Supreme Court of Maryland recognized the common law of burial places

in Maryland. This body of law developed in the United States in the courts of equity after

the rejection of the ecclesiastical law of England, and it attaches when human remains are

interred in land. The Court noted that the various principles of the common law of burial

places can provide the appropriate framework for certain disputes regarding burial places.

The Court further held that Petitioners, who sought to challenge the sale of a desecrated

burial ground for continued use for purposes other than burial, could seek relief under the

common law of burial places. Accordingly, extraordinary relief, in the form of a writ of

mandamus, was not appropriate. The Court ordered a remand to the circuit court to allow

Petitioners to seek leave to amend their complaint to state a claim for relief based on an

alleged violation of a specific right or rights protected under the common law of burial

places.

BUSINESS REGULATION ARTICLE – SALE OF A BURIAL GROUND FOR

ANOTHER PURPOSE – STATUTORY PROCEDURE NOT REQUIRED – The

Court further held that section 5-505 of the Business Regulation Article provides an

optional procedure through which a person may request a judgment to sell certain types of

burial grounds in fee simple, without restrictions on use, and free and clear of the claims

of the owners of the land and the holders of burial lots. Md. Code Ann., Bus. Reg. (“BR”)

§ 5-505 (2015 Repl. Vol.). The Court noted that, as a practical matter, the procedure may

be necessary in certain circumstances, such as when restrictions in the chain of title for a

burial ground would prevent using the land for other purposes. However, the procedure

itself is optional, and a seller may attempt to sell a burial ground without invoking the

procedure. Accordingly, the Court held that Petitioners were not entitled to extraordinary

relief, in the form of a writ of mandamus, to compel Respondent, a seller of a burial ground,

to use the statutory procedure.

BUSINESS REGULATION ARTICLE – SALE OF A BURIAL GROUND FOR

ANOTHER PURPOSE – ABROGATION OF THE COMMON LAW – The Court

further held that BR § 5-505 does not abrogate the common law of burial places in

Maryland. There is no indication that the General Assembly intended to abrogate the

common law in enacting the statute and its predecessors. The statute was primarily

designed to address historical problems that were grounded in property law principles and

that hindered the sale of certain burial grounds, and the statute is consistent with the

common law of burial places.

Circuit Court for Montgomery County

Case No.: 486734V

Argued: January 8, 2024

IN THE SUPREME COURT

OF MARYLAND

No. 18

September Term, 2023

BETHESDA AFRICAN CEMETERY

COALITION, ET AL.

v.

HOUSING OPPORTUNITIES COMMISSION

OF MONTGOMERY COUNTY

Fader, C.J.

Watts

*Hotten

Booth

Biran

Gould

Eaves,

JJ.

Opinion by Biran, J.

Booth, J., concurs and dissents.

Watts and Hotten, JJ., dissent.

Filed: August 30, 2024

Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., now a Senior Justice, participated in

Materials Act (§§ 10-1601 et seq. of the State the hearing and conference of this case while an

Government Article) this document is authentic.

active member of this Court. After being

2024.08.30

13:10:35

recalled pursuant to the Maryland Constitution,

'00'04- Article IV, § 3A, she also participated in the

Gregory Hilton, Clerk decision.

This case concerns a desecrated burial ground in Montgomery County, Maryland.

The ground, sometimes known as Moses Cemetery, was a historic Black burial place that

contains interments of many individuals, including formerly enslaved persons and their

families. After burials ceased in the mid-20th century, the land was sold and eventually

developed into an apartment complex and parking lot in the late 1960s. The record suggests

that, rather than respectfully disinterring and moving the remains of the deceased, the

developers disturbed the ground, removed human remains haphazardly and inconsistently,

destroyed grave markers, and ultimately paved a portion of the land into a parking lot. It

appears likely that human remains are still interred in the land today, which is currently

part of a property known as the Westwood Tower Apartments (“Westwood”).

Since the land was developed, it has changed hands multiple times. Today, it is

owned by the Respondent, the Housing Opportunities Commission of Montgomery County

(“HOC”). The Petitioners are three descendants of individuals who were buried in Moses

Cemetery; Reverend Olusegun Adebayo, the pastor of Macedonia Baptist Church, which

is located near the burial ground; and the Bethesda African Cemetery Coalition (“BACC”),

a nonprofit entity that seeks to preserve the history of Black people in the area (together,

the “Coalition”).

When HOC sought to sell the land to a property developer, the Coalition filed suit

in the Circuit Court for Montgomery County, seeking relief to protect the remains of the

deceased and ensure that their memory was respected. The Coalition’s complaint included

a single count, seeking extraordinary relief (in the form of a common law writ of

mandamus) to compel HOC to file an action under Md. Code Ann., Bus. Reg. (“BR”)

§ 5-505 (2015 Repl. Vol.). BR § 5-505 provides that “[a]n action may be brought … and a

court may pass a judgment for sale of a burial ground for another purpose” if “the ground

has been dedicated and used for burial,” “burial lots have been sold in the burial ground

and deeds executed or certificates issued to buyers of the lots,” “the ground has ceased to

be used for burial,” and “it is desirable to dispose of the burial ground for another purpose.”

BR § 5-505(a). If the “court is satisfied that it is expedient or would be in the interest of

the parties to sell the burial ground,” the court “may pass a judgment for the sale of the

burial ground on the terms and notice the court sets[.]” Id. § 5-505(b)(1). As part of such a

judgment, the court must order that “as much of the proceeds of the sale as necessary” be

used to pay for removal of any human remains, to purchase burial lots in another burial

ground, and to rebury the remains. Id. § 5-505(b)(2). In addition, the court must “distribute

the remaining proceeds of the sale among the parties according to their interests.” Id.

§ 5-505(b)(3). A judgment for the sale of a burial ground obtained under BR § 5-505

“passes to the buyer of the burial ground the title to the burial ground free of the claims of

… the owners of the burial ground … and … the holders of burial lots.” Id. § 5-505(c).

According to the Coalition, a judgment issued by a court under BR § 5-505 is

required whenever a burial ground is sold to be used for a purpose other than burial. Thus,

the Coalition asserts that HOC must file an action under BR § 5-505 and obtain a judgment

before it can sell the property containing Moses Cemetery.

2

The circuit court largely agreed with the Coalition. It granted preliminary injunctive

relief preventing HOC from completing its sale, and it later issued a writ of mandamus

compelling HOC to file an action under BR § 5-505 and to comply with the provisions of

that statute before selling the land.

The Appellate Court of Maryland reversed, reasoning that BR § 5-505 is a

“quiet-title” statute, designed to allow certain burial grounds to be sold free from the claims

of owners and holders of burial lots. Housing Opportunities Comm’n of Montgomery Cnty.

v. Adebayo, 258 Md. App. 137, 144 (2023). The Appellate Court concluded that § 5-505’s

provisions are not mandatory and, therefore, that HOC was not required to follow them

before selling the land. Id. at 195-96. The Coalition sought further review in this Court.

We conclude that extraordinary relief in the form of a writ of mandamus is not

available here for two reasons. First, there is an applicable legal framework in Maryland

to seek ordinary relief. Second, although we understand BR § 5-505 somewhat differently

from the Appellate Court (and from the parties here), we agree with the Appellate Court

that the statute does not impose a duty on parties like HOC to file suit before selling land

containing burial grounds for non-burial use.

As we explain below, it appears that the parties have misunderstood the legal

framework in Maryland that protects the repose of the deceased and the feelings of the

living who remember the deceased. This misunderstanding appears to have driven the focus

throughout these proceedings on BR § 5-505. That statute imposes no duty on sellers of

burial grounds to file an action. However, that does not mean that burial grounds in

3

Maryland are left without protection. There is a robust body of common law governing the

treatment of burial places in the United States. This common law of burial places has not

been entirely abrogated in Maryland. As such, to this day it provides a means to seek

ordinary relief to protect the resting places of the deceased where statutes do not apply.

Although this body of law is not well known, it supplies the appropriate framework for

many disputes concerning burial grounds where human remains are interred. As we discuss

below, when a person with standing brings a claim under the common law of burial places,

and where the General Assembly has not enacted an applicable statute covering the subject

matter, a circuit court will consider whether appropriate equitable relief is available to

protect the remains of the dead and to respect the feelings of the living. The remedies

available to a circuit court under the common law of burial places in any particular case

may include, but are not necessarily limited to, the core remedy specified in BR § 5-505:

the right to disinter bodies on land that will no longer be used as a burial ground and have

them reinterred elsewhere. The common law of burial places applies not only to the subset

of burial grounds covered under § 5-505. In addition, persons with standing may seek

appropriate relief under the common law of burial places where no sale of a burial ground

for another purpose is contemplated.

We will affirm the Appellate Court’s judgment in part, reverse it in part, and order

that the case be remanded to the circuit court. On remand, the Coalition may seek leave to

amend its complaint under Maryland Rule 2-341(b) to state a claim for equitable relief to

4

remedy an alleged violation of a specific right or rights protected under the common law

of burial places.

I

Background

Before recounting the facts of the case, we provide historical background on the

development of the common law of burial places in the United States. We also describe the

historical and legal landscape of the time. Because it had a unique development in the

United States, the common law of burial places operates somewhat differently from other

familiar legal areas. As such, the historical and legal background will help to show how

the law functions today and what remedies it may provide. This background will also help

to show how legislative efforts to facilitate moving burial grounds, like BR § 5-505,

operate and fit into the larger picture.

A. Developing a Common Law of Burial Places in the United States

In the United States, references to the “common law” typically refer either to the

common law of England as it existed at the time of our nation’s founding, or to the modern

interpretation and development of that common law as it applies to today’s disputes in the

United States. This is because most states, including Maryland, either explicitly adopted

English common law and afforded their citizens its benefits, see, e.g., Md. Decl. of Rts.

art. 5 (providing that “the Inhabitants of Maryland are entitled to the Common Law of

5

England” and to certain English statutes that existed on July 4, 1776), or modeled their

legal systems on the English common law paradigm.1

However, when we refer here to the common law of burial places in the United

States, we mean something else. This law, unique to the United States, developed in our

courts of equity beginning in the 1800s.2 Although it was informed in part by legal

principles that existed in England, it also drew from several other sources, including

principles of Greek and Roman law and Christian religious thought. See Tanya D. Marsh,

When Dirt and Death Collide: Legal and Property Interests in Burial Places, 30 Prob. &

Prop. 59, 60 (2016); SAMUEL B. RUGGLES, AN EXAMINATION OF THE LAW OF BURIAL IN

A REPORT TO THE SUPREME COURT OF NEW-YORK 45-46, 55 (1856). This new common

1

The sole exception is Louisiana, which derives its civil law from the French

Napoleonic Code. See John T. Hood, Jr., The History and Development of the Louisiana

Civil Code, 19 La. L. Rev. 18, 25-27 (1958).

2

The distinction between courts of equity and courts of law in Maryland has been

eliminated. In 1984, by rule, Maryland merged its courts of law and equity, “eliminat[ing]

distinctions between law and equity for purposes of pleadings, parties, court sittings, and

dockets.” LaSalle Bank, N.A. v. Reeves, 173 Md. App. 392, 404 (2007) (quoting Md. Rule

2-301 Comm. Note); see also Md. Rule 2-301 (“There shall be one form of action known

as ‘civil action.’”). The merger of law and equity “was not intended to abolish all

differences between legal and equitable claims and the defenses to them, but only to abolish

the pleading distinctions ... and to assure that all claims and defenses are determined in one

court.” LaSalle Bank, 173 Md. App. at 404-05 (citations omitted). Today, Maryland’s

circuit courts “are the highest common-law and equity courts of record exercising original

jurisdiction within the State. Each has full common-law and equity powers and jurisdiction

in all civil and criminal cases within its county[.]” Md. Code Ann., Cts. & Jud. Proc.

§ 1-501 (2020 Repl. Vol.).

6

law of burial places3 arose in the United States by necessity, responding to a gap in our

legal system left by rejecting an established church, and by declining to adopt the English

legal system in its entirety. Thus, to understand this body of law, it is helpful to look at the

gap that it developed to fill.

At the time of our nation’s founding, the English system comprised more than the

English common law and statutory enactments: it also included ecclesiastical law. This

third body of law was administered by the ecclesiastical courts of the Church of England,

and its jurisdiction included marriage, divorce, alimony, and – relevant here – the final

3

In discussing the U.S. common law of burial places, we specifically refer to the

court-made legal principles that govern, among other things, owning, using, accessing,

protecting, and disposing of places where human remains are interred. We distinguish this

from what one commentator has termed the law of human remains, a related and somewhat

overlapping area of law that governs unburied human remains. See generally TANYA

MARSH, THE LAW OF HUMAN REMAINS 31-53 (2016) (discussing this area of law and

various recurring issues, including inquests and autopsies, determining the final disposition

of human remains, and causes of action relating to the treatment of human remains). Thus,

the common law of burial places does not include all of the rights that fall under the broad

term of “sepulcher” (sometimes also referred to as “sepulture”). In particular, the common

law of burial places does not address that part of the right of sepulcher that concerns the

final disposition of human remains and possessing and controlling human remains before

their final disposition. See Katherine Calderon, The World of the Dead, the Right of

Sepulcher and the Power of Information, 32 Touro L. Rev. 785, 792 (2016). However, the

common law of burial places does protect the portion of the right of sepulcher that applies

after interment, “particularly to prevent the grave from being disturbed.” Tanya D. Marsh,

When Dirt and Death Collide: Legal and Property Interests in Burial Places, 30 Prob. &

Prop. 59, 63 (2016); see Partridge v. First Independent Church of Balt., 39 Md. 631, 637

(1874) (“Whenever, therefore, by lawful authority, the ground ceased to be a place of

burial, the lot-holder’s right and privilege ceased, except for the purpose of removing the

remains previously buried.”). The common law of burial places is part of what another

commentator has termed, more broadly, “the law of burial[.]” See PERCIVAL E. JACKSON,

THE LAW OF CADAVERS AND OF BURIAL AND BURIAL PLACES 247 (2d ed. 1950).

7

disposition and treatment of human remains.4 See Franklyn C. Setaro, A History of English

Ecclesiastical Law, 18 B.U. L. Rev. 102, 120-22 (1938); PERCIVAL E. JACKSON, THE LAW

OF CADAVERS AND OF BURIAL AND BURIAL PLACES 22-25 (2d ed. 1950).

The American states rejected this third body of law. The rejection was part of larger

skepticism about the power of an established church, a desire to break with the Church of

England generally, and negative sentiment left over from the American Revolution toward

“the role of the King’s church in oppressing colonists[.]” See Sarah Barringer Gordon, The

First Disestablishment: Limits on Church Power and Property Before the Civil War, 162

U. Pa. L. Rev. 307, 317-18 (2014).5 Thus, “the United States was born with a sizeable legal

4

This is not to say that there was no overlap between ecclesiastical and common

law jurisdiction. For example, both the common law and the ecclesiastical law imposed a

duty to bury the body of the deceased: the common law required certain individuals to

arrange for burial (thus preventing an uninterred body from becoming a public nuisance),

and the ecclesiastical law required the minister to provide a Christian burial. See Kate

Falconer, The Right to Possession of the Body of the Deceased: A History, 8 L. & History

1, 15-16 (2021).

5

Several cases have referenced this skepticism and leftover revolutionary

sentiment. See, e.g., Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565

U.S. 171, 183 (2012) (noting that even colonists in the South, who “brought the Church of

England with them ... sometimes chafed at the control exercised by the Crown and its

representatives over religious offices[,]” and so, “[f]amiliar with life under the established

Church of England, the founding generation sought to foreclose the possibility of a national

church”); City Council of Charleston v. Benjamin, 33 S.C.L. 508, 525 (2 Strob.) (1848)

(noting that separation of church and state “plainly pointed to the evils from which we had

escaped, in our separation from England” and that “[t]he Church of England, as an

established State religion, had been felt as a great grievance”).

8

void – it had no law regarding the disposition of human remains or burial places.”6 Marsh,

When Dirt and Death Collide, supra, at 60.

At first glance, that might suggest that the problem for the courts of our new nation

was simply a missing area of law, but the problem was greater. The common law of

England had developed as part of an interconnected whole. And in the context of protecting

human remains and burial places, it was “derived from the peculiar position of the English

parish churchyard[.]” Peter Sparkes, Exclusive Burial Rights, 2 Ecclesiastical L.J. 133, 139

(1991). Thus, if the English common law had simply been adopted as it was, and left to

operate without its ecclesiastical counterpart, it could have led to results that would never

have occurred in the English system. See Larson v. Chase, 50 N.W. 238, 238 (Minn. 1891)

(“[T]he English common-law authorities are not very helpful .... for the reason that from a

very early date in that country the ecclesiastical courts assumed exclusive jurisdiction of

such matters.... The repudiation of the ecclesiastical law ... by the American colonies left

the temporal courts the sole protector of the dead and of the living in their dead.”).

6

As to the other areas of law formerly under ecclesiastical jurisdiction, including

marriage and divorce, state legislatures stepped in to fill the gap left by enacting statutory

schemes. See, e.g., Gilsey v. Gilsey, 201 S.W. 588, 590 (Mo. Ct. App. 1918) (“[W]e have

no ecclesiastical courts, and hence it was necessary to formulate and enact statutes

governing matters of divorce.”). However, state legislatures did not enact (and even today,

largely have not yet enacted) comprehensive statutes regulating all burial places. See

Marsh, When Dirt and Death Collide, supra, at 59 (noting that statutes “are often highly

fragmented ... and scattered throughout state codes”). There generally are, however, robust

regulatory schemes governing cremation and commercial cemeteries. See, e.g., Hickman

ex rel. Hickman v. Carven, 366 Md. 362, 371 (2001) (discussing the “extensive regulations

on the use and operation of land” by commercial cemeteries in Maryland).

9

In England, the common and ecclesiastical laws functioned together, and almost

every person “had a right to be buried in the parish churchyard.” Pierce v. Proprietors of

Swan Point Cemetery, 10 R.I. 227, 236 (1872); see also Charles Burke Elliott, Grave Yard

Law, 16 Cent. L.J. 161, 162 (1883). “[O]nce buried, the body could not be removed without

license” from the church, Pierce, 10 R.I. at 236, and only the church and its officials had

an action for injury to a body or trespass to a grave. See Elliott, supra, at 163 (“By the

common law, the heir had no property in the body of the ancestor, nor could he bring a

civil action against those who disturbed the remains .... The only protection for a grave,

independent of ecclesiastical law, was by way of indictment.”) (footnote omitted). Absent

rare exceptions, “the ecclesiastical courts had control over the church and church-yard,

including rights of burial.” Sparkes, supra, at 135.

Secure in the knowledge that the Church and its ecclesiastical law would protect the

repose of the deceased, common law doctrines in England developed in part to respect

ecclesiastical jurisdiction. For example, the common law recognized a protectable interest

in personal property in and around the grave – the headstone, the deceased’s clothing, and

other items buried with the remains of a loved one – but generally held that human remains

were not “property.” This meant that there was little recourse at common law for relatives

of the deceased when the physical remains of their loved ones were disturbed. See Ritter v.

Couch, 76 S.E. 428, 430 (W. Va. 1912) (“By the old English law the body was not

recognized as property, but the charge of it belonged exclusively to the church .... So while

there was property in the burial lots, in the monuments, and in the ornaments and

10

decorations of the deceased or his grave, there was none in the remains themselves[.]”)

(cleaned up).

Even so, as William Blackstone once noted, the lack of common law protection

posed little problem in the English system. This is because the Church, through the parson

of the local parish, had a property interest in almost all of England’s burial places and was

well able to protect the deceased (and the feelings of the living who remembered the

deceased):

[T]hough the heir has a property in the monuments and escutcheons of his

ancestors, yet he has none in their bodies or ashes; nor can he bring any civil

action against such as indecently at least, if not impiously, violate and disturb

their remains, when dead and buried. The parson, indeed, who has the

freehold of the soil, may bring an action of trespass against such as dig and

disturb it[.]

2 WILLIAM BLACKSTONE, COMMENTARIES 428-29 (emphasis added).7

Several modern cases have similarly remarked that England’s common law

developed with the power and authority of the ecclesiastical law in mind. See, e.g., Pet. of

7

Similarly, the Church also exerted broad control over the character and aesthetics

of its burial grounds, and it was typically the final authority concerning the treatment of

human remains in its care. Thus, there was little need for the common law to intrude.

Among other things, the Church’s consistory courts were able to issue or deny permissions

(called “faculties”) to make changes to church grounds and graves – including aesthetic

changes – and to disinter or reinter human remains. In effect, churchyards “were subject to

a high degree of regulation” by ecclesiastical authorities. See Ian Blaney, The Treatment of

Human Remains under the Ecclesiastical Law of England, 23 Ecclesiastical L.J. 3, 5

(2021). The Church was also entrusted with determining when to move burial grounds –

i.e., “[t]he practical necessities of occasionally relocating burial places in England were

met by vesting control over corpses, and their burial and removal, in an ecclesiastical

officer called the ordinary.” HUGH Y. BERNARD, THE LAW OF DEATH AND DISPOSAL OF

THE DEAD 13 (2d ed. 1979).

11

Sheffield Farms Co., 126 A.2d 886, 890 (N.J. 1956) (“[I]n England the ecclesiastical courts

had exclusive jurisdiction of the dead and as a consequence the early common law refused

to recognize a concept of property rights in the body of a deceased person[.]”); Jackson v.

Rupp, 228 So. 2d 916, 918 (Fla. Dist. Ct. App. 1969) (“The early English common law

recognized no ... property rights in the body of a deceased person ... this being due

undoubtedly to the fact that the ecclesiastical courts exercised jurisdiction over the affairs

of decedents.”); cf. DuPont v. DuPont, 85 A.2d 724, 733 (Del. 1951) (the decision to reject

ecclesiastical law “disturbed the balance which existed in England between the High Court

of Chancery and the Ecclesiastical Courts which complemented each other to afford a

means of relief for some causes for which there was no adequate remedy in the law

courts”).

Accordingly, in the United States, courts dealing with cases formerly under

ecclesiastical jurisdiction struggled with the deference that the adopted English common

law paid to the now-absent ecclesiastical law. Early judicial decisions perceived a tension

between what appeared to be the technically correct result under property law principles,

and a morally or ethically preferred result – i.e., a result that, in substance, might have been

provided in England by the ecclesiastical law. Compounding the issue, courts in the United

States also faced problems that simply would not have existed in England, given the near

12

monopoly that the Church had over the disposition of human remains and control of burial

places.8

As an example, one early opinion reasoned that the sale of a burial ground in fee

simple by a religious corporation meant that – as a matter of law – interred bodies could be

removed without any further “prohibition or regulation[.]” Windt v. German Reformed

Church, 4 Sand. Ch. 471, 475 (N.Y. Ch. 1847). The court lamented this result, but

concluded that it was required, at least in the absence of some other property interest (such

as a deed to a burial plot or vault) that would provide a basis for relief under the English

common law. See id. at 476 (“It is painful and deeply abhorrent ... to have the remains of

beloved friends and relatives disturbed in their last homes, and removed by rude and

careless hands, to a distant cemetery, not hallowed by any of the associations which

encircle the consecrated ground where we have deposited them in sadness and in sorrow….

But I cannot shut my eyes to the clear light of the law[.]”). Another court of equity raised

a similar concern in a different context (validity of a marriage): “Are the principles of

8

Commentators have likewise pointed out that the “optional element” in American

burial practices meant that unique problems arose in the United States. See BERNARD,

supra, at 14 (noting that “the seeds of future trouble” were present in the United States

because of the various available options for burial, including family burial grounds, secular

and municipal burial grounds, and churchyards, unlike “[i]n England, [where] almost

without exception, burials were in churchyards or elsewhere in consecrated ground”); see

also MARSH, THE LAW OF HUMAN REMAINS, supra, at 8 (“[T]he practical needs of colonial

and frontier life led to a diversity of disposition models .... [An] ethnically and religious[ly]

diverse population had different needs than the sedentary, homogenous English of the

seventeenth and eighteenth centur[ies] .... [and] [l]aws that deferred to the spiritual

authority of the Church of England simply did not translate. A new common law therefore

had to be created.”).

13

natural law, and of Christian duty, to be left unheeded, and inoperative, because we have

no ecclesiastical Courts recognized by law ...?” Wightman v. Wightman, 4 Johns. Ch. 343,

347 (N.Y. Ch. 1820). The latter decision-maker, however, answered the question in the

negative, concluding that “[a]ll matrimonial, and other causes of ecclesiastical cognizance,

belonged originally to the temporal Courts ... and when the Spiritual Courts cease, the

cognizance of such causes would seem, as of course, to revert back to the lay tribunals.”

Id. (emphasis in original). Eventually, this latter view took hold more broadly in the United

States. The “lay tribunals” began to come into their role of protecting the interred remains

of the deceased, paving the way for developing a common law of burial places. This effort

– to recognize and provide the “secular guardian” for the dead made necessary by the

separation of church and state, see MARSH, THE LAW OF HUMAN REMAINS, supra, at 8 –

was furthered in large part by two significant legal developments.

First, in 1829, the United States Supreme Court handed down a groundbreaking

decision in Beatty v. Kurtz, 27 U.S. 566 (1829), supporting the idea that the courts could

protect the repose of the deceased and the feelings of the living (i.e., the role held in

England by the Church). The Supreme Court was faced with an ownership dispute over

land in Georgetown that had been used for a church and burial ground.9 The landowner

had “marked out” the land at issue in 1769 in a recorded plan for an addition to

Georgetown, inscribing it with the words “for the Lutheran church[.]” Id. at 578-79. A few

9

The town of Georgetown was once in Maryland, but it became part of the District

of Columbia in the early 1790s. As such, the Supreme Court grounded its decision, in part,

in Maryland law.

14

decades later, after the landowner had died, the putative trustees of a Lutheran church filed

suit in the court of equity in the District of Columbia. They alleged that they had been in a

contract with the landowner to obtain the land, that members of their church had used the

land for more than 50 years as both a church and burial ground (though their church had

since “decayed” and fallen down), and that the successors of the landowner recently had

entered the burial ground and “threw down the fence and tombstones” in an attempt to

dispute the Lutheran congregation’s claim. See id. at 571, 567, 579-80. Accordingly, the

plaintiffs sought specific performance by conveyance of legal title to the land, to quiet title

to the land, and an injunction to prevent future trespass. The defendants, however, claimed

that the landowner had only intended to convey the land to the Lutheran congregation on

the condition that they would build a church on the land “within a reasonable time,” and

the defendants disputed that any building erected on the land was ever used as a church.

Id. at 580.

The Supreme Court ultimately resolved the dispute in favor of the Lutheran

congregation, affirming an injunction against the defendants. In so doing, the Court

articulated a fundamental principle of the common law of burial places: that a court of

equity has the power, “operating by its injunction,” to protect the resting places of the

deceased and the feelings of the living with respect to those places:

This is not the case of a mere private trespass; but a public nuisance, going

to the irreparable injury of the Georgetown congregation of Lutherans....

[T]he sepulchres of the dead are to be violated; the feelings of religion, and

the sentiment of natural affection of the kindred and friends of the deceased

are to be wounded; and the memorials erected by piety or love, to the memory

of the good, are to be removed .... It cannot be that such acts are to be

15

redressed by the ordinary process of law. The remedy must be sought, if at

all, in the protecting power of a court of chancery; operating by its injunction

to preserve the repose of the ashes of the dead, and the religious sensibilities

of the living.

Id. at 584-85.10

Second, a few decades later, a New York attorney named Samuel Ruggles added

another key contribution to the U.S. common law of burial places, drafting what came to

be considered a foundational commentary in this area. In the mid-1800s, Ruggles was

appointed as a referee in a matter involving taking a portion of a churchyard in New York

City to widen a street and dividing the compensation between the church and the affected

vault owners. He drafted a report for the trial court that summarized the relevant legal

principles and traced their development, and the report was later published. See SAMUEL

B. RUGGLES, AN EXAMINATION OF THE LAW OF BURIAL IN A REPORT TO THE SUPREME

COURT OF NEW-YORK (1856) (“Ruggles Report”). The Ruggles Report, as it came to be

known, has been cited authoritatively in cases concerning human remains and burial

10

In discussing Beatty, the Appellate Court stated that the case “has nothing to do

with the common law” and “was not an action at common law”; it was simply “an action

in equity to compel the conveyance of a lot that had been dedicated for a charitable purpose

... and to enjoin others from trespassing onto the lot.” Adebayo, 258 Md. App. at 168,

172-73. Although we agree with the Appellate Court that Beatty had little to do with the

English common law or the law courts of England, the U.S. common law of burial places

developed its guiding principles within the courts of equity, and Beatty is a foundational

authority for this body of law. See Marsh, When Dirt and Death Collide, supra, at 61, 63

(discussing the significance of Beatty in developing this new area of American common

law).

16

places.11 Although written in controversial language and with an anti-ecclesiastical bent,

the Ruggles Report nevertheless provided foundational thought for developing a common

law of human remains and burial places in the United States.

According to Ruggles, the historical division of judicial authority in England

between the Church and the State, in one composite system, “materially narrowed the

powers and the action of the courts of common law.” Ruggles Report at 35. Ruggles

asserted that, although the English common law courts of his time gave “humble deference

to the ecclesiastical tribunals,” this was not always so; instead, authority over the dead had

originally belonged to the ancient civil law courts and, over the centuries, it had been

“gradually abstracted” from these secular courts into the ecclesiastical authority. Id. at 41,

43. Thus, reasoned Ruggles, even though the English ecclesiastical system was

incompatible with the American legal system, that did not mean that rejecting ecclesiastical

law left the dead without protection in America. Instead, the authority to secure the repose

of the deceased “was only absorbed by the Church, and held in suspense, until some

political revolution or religious reformation should overthrow the ecclesiastical power[.]”

11

See, e.g., State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White

Eagle, 63 S.W.3d 734, 748 (Tenn. Ct. App. 2001) (observing that the Ruggles Report “has

become a cornerstone of the development of the common law of burial in the United

States”); Larson v. Chase, 50 N.W. 238, 238 (Minn. 1891); Herzl Congregation v.

Robinson, 253 P. 654, 655 (Wash. 1927). The Ruggles Report has also informed several of

the leading books and treatises on these issues. See, e.g., SIDNEY PERLEY, MORTUARY LAW

36 n.2 (1896); JACKSON, supra, at 13 n.27; BERNARD, supra, at 14-15; MARSH, THE LAW

OF HUMAN REMAINS, supra, at 7-8; see also RESTATEMENT (THIRD) OF TORTS,

Miscellaneous Provisions, § 48 D. The Right of Sepulcher (Disposition of Human

Remains), cmt. a (Am. L. Inst. Tentative Draft no. 2, March 2023) (“Ruggles’s articulation

powerfully influenced the law’s development.”).

17

Id. at 48. Ruggles emphasized that the American Revolution did just that, and therefore

that courts in the United States must take up certain of the responsibilities and powers

formerly held by the ecclesiastical courts to protect the remains of the deceased:

Burial, in the British Islands, may possibly remain, for many generations,

subject exclusively to “ecclesiastical cognizance;” but in the new,

transplanted England of the Western continent, the dead will find protection,

if at all, in the secular tribunals, succeeding, by fair inheritance, to the

primeval authority of the ancient, uncorrupted common law.

Id. at 51.

Building upon these two authorities, equity and appellate courts in the United States

set out to resolve disputes and further articulate the principles of the U.S. common law of

burial places, frequently referencing the opinions of other state courts (and later also the

secondary sources collecting those cases) both as persuasive authority, and to ensure that

judicial decision-making was as consistent as possible. See, e.g., Larson, 50 N.W. at 238

(“Inclined to follow the precedents of the English common law, [American] courts were at

first slow to realize the changed condition of things, and the consequent necessity that they

should ... administer remedies as in other analogous cases. This has been accomplished by

a process of gradual development[.]”); Pet. of Sheffield Farms Co., 126 A.2d at 890-91

(“[W]ith the repudiation of the ecclesiastical courts in the American colonies, jurisdiction

over these matters passed to the temporal courts.... It is now settled beyond question that

once a body is buried it is in the custody of the law, and removal or other disturbance of it

is within the jurisdiction of our courts with equitable powers.”).

A consistent theme runs through these decisions: courts of equity have the power to

balance the interests of the living and the repose of the deceased. They do so by applying

18

the principles of the common law of burial places, and developing those principles as

needed to resolve future controversies. See Dougherty v. Mercantile-Safe Deposit & Trust

Co., 282 Md. 617, 620 (1978) (“[W]hen ... proper burial has been discharged, the right of

custody ceases and the body is thereafter in the custody of the law and disinterment or

disturbance of the body is subject to the control of a court of equity.”); Wilson v. Read, 68

A. 37, 39 (N.H. 1907) (“It is well settled that in this country, in the absence of ecclesiastical

tribunals ..., courts of equity have power to settle controversies as to the burial of the dead,

the care of their remains after burial, and the preservation of the place of interment from

wanton violation or unnecessary disturbance.”); State ex rel. Comm’r of Transp. v.

Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 749 (Tenn. Ct. App. 2001) (“In

this country today, the civil courts have unquestioned jurisdiction to resolve disputes

involving the burial and reinterment of human remains. It is now commonly said that

human remains, after interment, are in the custody of the law, and are subject to the control

and discretion of the courts applying equitable principles.”) (internal citations omitted); see

generally JACKSON, supra, at 247 (“[A] court of equity is free to announce a law of burial

and preserve the sanctity of burial places by virtue of the principles of the law of burial

alone.”).

B. The Historical and Legal Landscape – Conflicts Between Urban Growth and

Burial Ground Uses of Land

1. Population Growth in the 1800s Caused Cities to Encroach Upon Burial

Grounds.

In the 1800s, when our courts of equity were beginning to develop a common law

of burial places, the social and legal landscape differed from that of today in certain

19

significant respects. Cemetery companies were still a relatively new concept. And despite

the availability of family burial grounds, the traditional American place of burial was

similar to England’s: the churchyard. See HUGH Y. BERNARD, THE LAW OF DEATH AND

DISPOSAL OF THE DEAD 76 (2d ed. 1979); Elizabeth Searcy, The Dead Belong to the Living:

Disinterment and Custody of Dead Bodies in Nineteenth-Century America, 48 J. of Soc.

Hist., No. 1, Fall 2014, at 112, 114-15; see also Medicine Bird, 63 S.W.3d at 747 (“Even

though the colonists did not have the same right to be buried in a churchyard ..., interment

in churchyards was the most common mode of burial, followed by family burial grounds

and, later, public cemeteries.”).12

During this time, cities in the United States began to grow rapidly, leading to

overcrowding and the need to expand. This brought with it the desire to relocate urban

burial sites, and – as a result – the further development of the U.S. common law (as well

as statutory law) of burial places. See Searcy, supra, at 112, 115 (describing the “urban

crowding[,]” “[n]ew sanitary restrictions[,] and the dilapidated conditions of urban

graveyards” that developed during the mid-1800s); MARSH, THE LAW OF HUMAN

REMAINS, supra, at 60 (describing the “rapid urban grown in the nineteenth century [that]

led to significant changes in burial practices”); PERLEY, supra, at Preface (noting, in 1896,

that “all law concerning dead human bodies” became “increasingly important” because of,

among other things, “the increase of population” and “for sanitary reasons”).

12

Other burial options included public cemeteries “under the sole control of towns

and cities[,]” cemeteries controlled by states and established by statute, and national

cemeteries created by acts of Congress. See PERLEY, supra, at 125.

20

Simultaneously, overcrowding and neglect began to plague many burial grounds

located in growing municipalities. Cf. Reed v. Stouffer, 56 Md. 236, 249 (1881) (noting

allegations that “in consequence of the growth of the city,” a burial ground in Maryland

had become “unsuitable for burial purposes”). And because these burial grounds were often

located at the center of towns, they were “perceived as a nuisance to neighbors” and

occupied increasingly valuable land that could be put to other uses. See MARSH, THE LAW

OF HUMAN REMAINS, supra, at 60; PERLEY, supra, at 151 (“A burying ground within the

limits of a city, where the population is dense, may readily become a nuisance.”).

Similar problems in managing burial grounds were faced by religious societies of

the time, frequently because of financial pressures and dwindling membership. Sometimes

land would be abandoned by religious societies. See Appeal of Gumbert, 1 A. 437, 439 (Pa.

1885) (discussing land that had been used as a burial ground and place of worship, but that

had been abandoned as a place of worship “long ago”). Cities also began to encroach on

land held by those societies. See Appeal of Kincaid, 66 Pa. 411, 419 (1870) (“The city was

growing and becoming closely built around [the burial ground], and as no income was

derived from it by the churches, there were no means of keeping it in proper order, and

from its neglected condition it was rapidly becoming a nuisance[.]”). And a lack of funds

sometimes impeded efforts by religious societies to manage their land. See Beatty, 27 U.S.

at 581 (noting that a burial ground had once contained a church, but the church had

decayed, and the religious association did not have the funds to rebuild it because its

21

congregation “constituted but a small number” and they could not “maintain public

worship constantly” at the location).

In part to address these concerns, states began to allow the incorporation of cemetery

companies. The Baltimore Cemetery Company was chartered in 1849. See 1849 Md. Laws,

Ch. 71 (“An act to incorporate the Proprietors of Baltimore Cemetery.”). And a few years

later, the General Assembly passed another act generally allowing additional cemetery

companies (or “cemetery associations,” as they were sometimes termed) to be

incorporated. 1852 Md. Laws, Ch. 221. In incorporating the Baltimore Cemetery

Company, the General Assembly cited many of the concerns that troubled cities of the time

– particularly the “interment of the dead amid the abodes of the living”:

[P]ublic sentiment, in the city of Baltimore, in accordance with the

enlightened experience of larger cities elsewhere, is opposed to the interment

of the dead amid the abodes of the living, for sanitary and other obvious

reasons; and ... experience hath also shewn that it is desirable to have public

burial grounds, subject to such laws, rules, and regulations as will insure to

the living the continued protection of the remains of their dead, and the

decent preservation of the grounds by securing them in perpetuity to the

object of their dedication[.]

1849 Md. Laws, Ch. 71.

2. Property Law Restrictions Tied Up Land for Burial Ground Purposes,

Particularly in Maryland.

Compounding problems of overcrowding, the legal landscape of the time also

impeded efforts to repurpose existing burial grounds and serve the needs of the growing

population. For many large burial grounds, deeds in the chain of title contained express

restrictions limiting the allowable uses of burial ground land. These sorts of restrictions

were particularly common in burial grounds owned and operated by religious institutions

22

– the traditional burial option of the time – and they also existed in burial grounds operated

by cemetery companies and municipalities.

Specifically, when land was conveyed with the intent that it would be used as a

burial ground, deeds of the 1700s and 1800s generally included language referencing that

intent. Such language could be interpreted in different ways, with different effect. In certain

cases, it would create a “condition” that the land be used as a burial ground, meaning that

ownership of the land could revert to the heirs of the grantor (and ownership of the land

would be forfeited) if the land was ever put to another use. See Kelso v. Stigar, 75 Md. 376,

386 (1892) (language in a deed conveying land “for and to the use of and purposes ... for a

burying place” left the grantor and his heirs with a possibility of reverter, and the land

would be forfeited to them if used for another purpose); Appeal of Gumbert, 1 A. at 438-39

(language in a deed meant that the grantor retained a reversionary interest if the land ceased

to be used for “a church and church-yard, and burying-place”); Dolan v. Mayor and City

Council of Balt., 4 Gill 394, 404, 405 (Md. 1846) (language in a deed conveying land for

“a church ... and to lay out a burying ground” meant that “[i]f the conditions of the deed

have not been performed, the whole estate ... will have reverted to the heirs of the grantor”).

In other cases, language in a deed might “reserve” a portion of the land conveyed,

allowing the reserved portion to continue to be used for burial under the ownership of the

grantor. See Belcher v. Powers, 573 S.E.2d 12, 14-15 (W. Va. 2002) (language in a deed

conveyed certain land but reserved a burial ground). Thus, the grantee would not be able

to put the land to different uses without violating the rights of another landowner. Like

23

language of condition, language of reservation in a deed would ensure that a burial ground

would not be disturbed – and it could similarly lock the land into use only as a burial ground

or for the other purposes specified in the chain of title.

There were also other possibilities for interpreting deed language, each with similar

effect. These other interpretations included a restrictive covenant, an easement, or a

charitable trust. See, e.g., Dumbarton Improvement Ass’n, Inc. v. Druid Ridge Cemetery

Co., 434 Md. 37, 46-47 (2013) (language in a deed created a restrictive covenant requiring

land to be operated as a burial ground); In re Estate of Harding, 878 A.2d 201, 204-05 (Vt.

2005) (language in a deed created a “burial easement” allowing those benefitted and their

descendants to continue to maintain a burial ground); Rawson v. Inhabitants of Sch. Dist.

No. 5 in Uxbridge, 89 Mass. (7 Allen) 125, 130-31 (Mass. 1863) (language in a deed

created a “trust and confidence” that land would continue to be used as a burial ground “so

long as it was reasonable and practicable so to do”); Reformed Protestant Dutch Church in

Garden Street v. Mott, 7 Paige Ch. 77, 77 (N.Y. Ch. 1838) (“The conveyance ... to have a

house of public worship erected ... and for no other use whatever, was a valid conveyance

... to a charitable and pious use; and the court of chancery has original jurisdiction to

enforce the performance of the trust.”).

Regardless of the precise legal characterization of a given land use restraint, each of

these possibilities would prevent land from being used for another purpose – sometimes

24

indefinitely.13 They would also provide a litigant who had standing with some ability to

protect a burial ground by seeking to enjoin other land uses.

In Maryland, these sorts of restrictions in the chains of title of burial grounds were

particularly common. This is largely because, from 1776 until the late 1940s, a so-called

“Mortmain” provision in the Maryland Declaration of Rights required that conveyances of

land to religious associations contain specific land use restrictions. This Mortmain

provision was based upon the English “statutes of mortmain” that were enacted in the

1200s to prevent the Church from continuing to accumulate lands in perpetuity, “thereby

withdrawing them from public and feudal charges.” Fletcher v. Safe Deposit & Trust Co.,

193 Md. 400, 411 (1949). Under Maryland’s Mortmain provision, in the absence of special

permission from the General Assembly, all conveyances of land to a religious entity were

deemed void, with the exception that a conveyance under a certain acreage could be made

without legislative approval, provided that it was for “a church, meeting, or other house of

worship, and for a burying ground, which shall be improved, enjoyed or used only for such

purpose[.]” Trustees of the Catholic Cathedral Church of Balt. v. Manning, 72 Md. 116,

13

The rule against perpetuities generally did not interfere with these sorts of

restrictions. For instance, a trust or “donative disposition” of property solely for charitable

purposes, such as for a church and burial ground, was generally exempt from the rule. See

generally RESTATEMENT (THIRD) OF PROPERTY (WILLS & DONATIVE TRANS.) § 27.3 (Am.

L. Inst. 2011). The rule against perpetuities likewise did not disturb reversionary interests

that were left in the grantor and their successors. See RESTATEMENT (FIRST) OF PROPERTY

§ 372 (Am. L. Inst. 1944). Accordingly, commentators have noted the lack of influence

that the rule against perpetuities had in this area. E.g., BERNARD, supra, at 80 (“Often the

traditional rule against perpetuities, which forbids the tying up in a private trust of funds

or property ... is suspended or rendered inapplicable to cemetery organizations and trusts.”).

25

121 (1890) (emphasis added). If a deed did not explicitly restrict the purpose of the land

conveyance to the permitted purposes, it was void. See id. at 123 (noting that “all other

sales or grants to religious sects, orders, and denominations” besides those not greater than

two acres and intended for a church, meeting, or other house of worship or burying ground,

“were declared void unless made with the ‘leave’ of the Legislature”);14 Grove v.

Congregation of Disciples of Jesus Christ, 33 Md. 451, 454 (1871) (“Upon its face this

deed is in direct contravention of the [Mortmain] Article of the [] Declaration of Rights....

[T]he original grantor, in our opinion, had the right to treat it as defective and void[.]”).

Thus, even though it is largely a historical footnote today,15 during its time the

Mortmain provision in the Maryland Declaration of Rights had significant effect. Leading

commentators on Maryland’s constitutional law have remarked that the provision was

“perhaps the [second] most important in the Declaration of Rights” and “furnished a

14

From 1776 to 1851, the exception was limited to conveyances of no larger than

two acres. See Md. Decl. of Rts. art. 34 (1776). The Constitution of 1851 increased this

allowance to five acres and renumbered the Mortmain provision to Article 35. Md. Decl.

of Rts. art. 35 (1851). Although the requirements for use restrictions remained largely

unchanged from 1776 to 1947, the 1851 Constitution additionally allowed conveyances of

land for parsonages. Eventually, the Mortmain provision was renumbered again to Article

38, and it still bore that number when it was repealed in 1977. See generally Dan Friedman,

The History, Development, and Interpretation of the Maryland Declaration of Rights, 71

Temp. L. Rev. 637, 669 & nn. 507-14 (1998).

15

In 1947, the requirement of legislative approval was removed, rendering the

Mortmain provision in the Maryland Declaration of Rights largely ineffective. Instead,

conveyances of land to religious entities were allowed absent express legislative

disapproval. Friedman, supra, at 669 & n.509 (citing Act of Apr. 25, 1947, Ch. 623, 1947

Md. Laws 1557-58); see also Murray v. Comptroller of Treasury, 241 Md. 383, 394 (1966).

The Mortmain provision was then formally repealed in the late 1970s. See 1977 Md. Laws

2743, Ch. 681.

26

considerable amount of litigation[,]” ALFRED S. NILES, MARYLAND CONSTITUTIONAL

LAW 56-57 (1915), and have termed it “a unique provision in the Maryland Declaration of

Rights” intended to prevent religious entities from acquiring property in perpetuity. Dan

Friedman, The History, Development, and Interpretation of the Maryland Declaration of

Rights, 71 Temp. L. Rev. 637, 669 & n.514 (1998). During the almost two centuries that

Maryland’s Mortmain provision was in effect, deeds conveying land to religious entities in

Maryland typically included language limiting the permissible uses of the land. For

example, deeds sometimes conveyed land “to enclose and keep the same for a burying

place ... and also to erect or build a meeting house[,]” Second Universalist Soc’y of the City

of Balt. v. Dugan, 65 Md. 460, 465 (1886), or “to ... erect ... a church ... and to lay out a

burying ground[.]” Dolan, 4 Gill at 404.

This is not to say that religious entities in Maryland could never hold land outright

in fee simple, subject to no conditions or other use restrictions. There were a few narrow

circumstances where that was possible. Conveyances made before the Maryland

Declaration of Rights was adopted, for instance, were exempt from its requirements. See

Kelso, 75 Md. at 401. And even if a conveyance to a religious entity was void under the

Mortmain provision, the religious entity could eventually obtain the land outright, without

any restrictions, through adverse possession. See, e.g., Trustees of Zion Church v. Hilken,

84 Md. 170, 171-72 (1896) (“The deed, even if void, could not be less than color of title ...

and a continuance of this possession for twenty years would perfect the title against all

persons[.]”) (quoting Gump v. Sibley, 79 Md. 165, 169 (1894)); Rydzewski v. Vestry of

27

Grace and St. Peter’s Church, 145 Md. 531, 535 (1924) (“It is conceded that the

conveyance ... was void under [the Mortmain provision] of the Declaration of Rights ....

The evidence shows, however, that the grantee ... has [] acquired a good title by adverse

possession.”).

Nevertheless, use and purpose restrictions in deeds to burial ground land were the

norm of the time, especially in Maryland. Even deeds executed before 1776 sometimes

contained such restrictions. See Kelso, 75 Md. at 386-87 (discussing restrictions in a 1773

deed requiring that the land be used for, among other things, a burial ground and a meeting

house). Many deeds of land to cemetery companies also contained similar restrictions. See,

e.g., Dumbarton Improvement Ass’n, 434 Md. at 43, 46-47 (discussing a restrictive

covenant in a 1913 deed to a cemetery company requiring the property to be “maintained

and operated as a cemetery”); Sapper v. Mathers, 133 A. 565, 565 (Pa. 1926) (discussing

an 1827 deed conveying land to a cemetery association “for no other purpose whatsoever

than a cemetery or burial ground” and explaining that “[t]he charter of the cemetery

association permitted it to hold land for burial purposes only, which may account for the

deed being so drawn”). These sorts of property law restrictions hindered efforts to move

burial grounds outside of growing cities, and to use increasingly valuable burial ground

land for other purposes.

28

C. This Case

In 1911, White’s Tabernacle No. 39 (“White’s Tabernacle”), a fraternal society that

supported the Black community,16 purchased land for a community burial ground in

Bethesda, Maryland. This land encompassed what is now known as parcel 175 (sometimes

also referred to as “lot 175”), as well as additional land. Interments on parcel 175 began as

early as 1912 and continued for several decades, with the last burial likely occurring in the

mid-1940s. Throughout this time, the burial ground was frequently referred to as Moses

Cemetery.17 Although interments occurred for several decades and, at one point, the burial

ground contained at least 200 individual graves, it appears that no recorded deeds ever

mentioned Moses Cemetery or any use of the land as a burial ground.18

Moses Cemetery was not the first burial ground operated by White’s Tabernacle.

Since the 1880s, that organization had operated Christian Cemetery in Tenleytown in the

16

The full name of the fraternal society was White’s Tabernacle Number 39 Lodge

of the Ancient Order of Sons and Daughters, Brothers and Sisters of Moses.

17

The burial ground is referred to in the record by several different names, including

the Moses African Cemetery, the Moses Macedonia African Cemetery, and the River Road

Moses Cemetery. We will adopt the Coalition’s convention in its brief of referring to the

burial ground as Moses Cemetery.

18

The 1911 deed to White’s Tabernacle conveyed the land in fee simple, with no

mention of any use as a burial ground. Likewise, when White’s Tabernacle sold the land

in 1958, the deed also stated that the conveyance was in fee simple, and neither Moses

Cemetery nor any particular land use or purpose was mentioned. The record, however, does

suggest that certain tax records in Montgomery County filed during the twentieth century

referenced use of the land as a graveyard. Although these tax documents were not made

part of the record, they are referenced in the record and do not appear to be disputed here.

29

District of Columbia. After selling the land containing Christian Cemetery,19 White’s

Tabernacle sought to disinter the bodies buried there and to reinter them elsewhere. An Act

of Congress was passed allowing the disinterment, and White’s Tabernacle then disinterred

the remains of as many as 192 persons from Christian Cemetery and reinterred them in

Moses Cemetery.

Among those buried or reinterred at Moses Cemetery were formerly enslaved

persons and their descendants, including members of the nearby River Road community

that was established shortly after the end of slavery in the 1860s. From the record here, it

appears likely that formal deeds or certificates as to particular burial lots in Moses

Cemetery were not issued to buyers. Instead, the Coalition’s expert testified generally that

it was common in historic African-American cemeteries not to record in writing where

particular bodies were buried or who owned which plots. The expert also testified that no

records of any deeds or certificates as to lots in Moses Cemetery had been found. Reverend

Adebayo provided similar testimony that burial grounds like Moses Cemetery would

typically be subdivided into burial plots, that plots would be sold at nominal prices as the

need arose to bury loved ones, and that individual purchasers would not be issued deeds

for any particular burial places. Rather, family members would “simply know the plot ...

where their loved one is buried[.]”

19

It appears that White’s Tabernacle sold Christian Cemetery to a land development

company. That company then used the land to develop Chevy Chase Parkway (which at

the time was named 37th Street). See David Kathan et al., Tracing a Bethesda, Maryland,

African American Community and Its Contested Cemetery, 29 Wash. Hist., No. 2, Fall

2017, at 24, 32.

30

In 1958, representatives of White’s Tabernacle sold parcel 175 to Leo Furr, and the

land was later conveyed again. These conveyances led to the construction of Westwood’s

apartment building and adjacent parking lot in the 1960s. However, rather than respectfully

disinterring the bodies in Moses Cemetery and reinterring them elsewhere, the developers

desecrated Moses Cemetery by bulldozing parcel 175 and paving it over. The circuit court

heard testimony from an eyewitness who recalled workers pushing grave markers into a

nearby creek, exposing human remains during construction, and carrying those remains

away from the site.20 Eventually, visible evidence of Moses Cemetery’s existence was all

but erased, although the burial ground was not forgotten in the community.21

HOC began leasing Westwood in 1997, and it obtained an option to purchase the

property as part of the lease.22 Westwood was then purchased by a different entity in 2013,

and the new owner began plans to redevelop the property while HOC continued to lease it.

20

As the Appellate Court noted, Adebayo, 258 Md. App. at 146-47, it appears that

this was done without securing the required permission from the State’s Attorney, which

would have been required before removing human remains from a burial site. See Md.

Code Ann., Art. 27, § 265 (1957). Such permission is still required today. See Md. Code,

Crim. Law § 10-402 (2021 Repl. Vol.).

21

The record indicates that, over the last several years, community members have

visited the burial ground to leave flowers and conduct libation ceremonies – that is, ritual

offerings of liquid to the spirits or souls of the deceased. The site has also seen notable

visitors, including King Toffa IX, who visited from Porto-Novo, Benin to perform a

libation ceremony and give remarks.

22

In its opinion granting a preliminary injunction in favor of the Coalition, the

circuit court found, among other things, that HOC “was established in 1974 to better

respond to [Montgomery County’s] need for affordable housing” and that HOC “receives

state funding to provide affordable housing and supportive services[.]”

31

However, news of the planned redevelopment – and knowledge that the property might

stand atop a desecrated burial ground – sparked public outcry. In response, the

Montgomery County Planning Department commissioned a documentary research study

of the site.

This study produced a preliminary report in 2017 that contained several conclusions

about parcel 175 and Moses Cemetery. Among other things, the report stated that Moses

Cemetery existed on parcel 175 and that there was no evidence that any human remains

were formally disinterred and reinterred elsewhere. The report also noted that there was

“ample evidence” of Moses Cemetery’s existence, and although some of the burial ground

had been disturbed (and there was “uncertainty” concerning its present condition), the

report further concluded that “it is improbable that the cemetery was completely effaced[,]”

and there was no indication that it had been moved. Also in 2017, the Historical Society of

Washington, D.C. published an article about the history of Moses Cemetery and the

surrounding River Road community. This article noted that the burial ground likely “lay

under a parking lot next to Westwood Tower Apartments[.]” See David Kathan et al.,

Tracing a Bethesda, Maryland, African American Community and its Contested Cemetery,

29 Wash. Hist., No. 2, Fall 2017, at 24, 25.23

HOC exercised its option to purchase Westwood (including parcel 175) and

completed its acquisition of the property in 2018. In 2021, HOC contracted to sell

The circuit court found that, before 2017, HOC had “acknowledged that a burial

23

ground was present on Lot 175.”

32

Westwood to a developer for a profit of approximately $30 million. The contract for sale

contained provisions that would require the developer to make capital improvements to the

property, set aside a percentage of the residential units for low- and moderate-income

families, and use “commercially reasonable efforts ... to memorialize the historical

significance of the land formerly owned by White’s Tabernacle … (which is sometimes

referred to as Moses Cemetery[.]).”

Shortly after news of the pending sale became public, the Coalition brought a

single-count complaint against HOC, requesting a writ of mandamus to compel HOC to

bring an action “for sale of a burial ground for another purpose” under BR § 5-505 and Md.

Rule 14-401 as part of HOC’s effort to sell Westwood. In support, the Coalition argued

that a burial ground could not be sold with an intent to use it (or to continue to use it) for

some other purpose, unless HOC followed the procedures in that statute and rule. The

Coalition further sought to enjoin HOC from completing its sale while the request for

mandamus relief was pending.

The circuit court largely agreed with the Coalition, temporarily restraining HOC

from completing the sale, and later granting a preliminary injunction to the same effect.

Ultimately, the circuit court issued a writ of mandamus compelling HOC to comply with

BR § 5-505 before selling Westwood and parcel 175. In so doing, the circuit court found

that there was “overwhelming evidence” that a burial ground existed on parcel 175 and that

“many bodies likely still remain on the property[.]” The circuit court further explained that

it was a court of equity and had an obligation to ensure that the resting places of the

33

deceased are respected. However, the court determined that “Maryland statutes provide

few civil remedies to protect those buried on Lot 175” and that “no other sufficient remedy

exists to ensure that the remains on Lot 175 are protected and respected.”

The Appellate Court reversed in a reported opinion. Housing Opportunities Comm’n

of Montgomery Cnty. v. Adebayo, 258 Md. App. 137 (2023).24 Consistent with the parties’

framing of the issues, the Appellate Court focused its analysis on BR § 5-505. Pointing out

that BR § 5-505 provided only that an action “may” be brought to sell a burial ground for

another purpose, the Appellate Court reasoned that BR § 5-505 does not set forth a required

procedure, but instead provides only an optional mechanism to sell (and to quiet title to) a

burial ground in certain circumstances. Id. at 192-96. The Appellate Court acknowledged

that the word “may” in a statute can sometimes connote a mandatory action or precede

mandatory requirements, but determined that this was not the case with respect to

24

Before the circuit court entered its final decision on the request for mandamus

relief, the buyer backed out of the transaction, citing its inability to timely acquire the

property because of the pending litigation. According to the Appellate Court, this rendered

the case moot. See Adebayo, 258 Md. App. at 154 (reasoning that, “[b]ecause this is a case

to enjoin a sale and to require the seller to obtain court approval ... it would certainly seem

that the case became moot” once the buyer terminated the sale agreement). The Appellate

Court nevertheless addressed the merits of granting mandamus relief, reasoning that even

though the case was moot, it fell within a narrow exception for cases where, among other

things, the issue is likely to evade review and the public interest would clearly be hurt by

refusing to decide the issue. Id. at 156-57. Neither party challenges that determination

before us.

“Generally, a case is moot if no controversy exists between the parties or when the

court can no longer fashion an effective remedy.” D.L. v. Sheppard Pratt Health Sys., Inc.,

465 Md. 339, 351-52 (2019) (cleaned up). We agree with the Appellate Court that the

Coalition’s mandamus claim is moot. We also agree that it is appropriate to reach the merits

of the Coalition’s appeal for the reasons stated by the Appellate Court.

34

BR § 5-505. Id. at 164-65, 167, 196. Concluding that HOC had no duty under § 5-505 to

file an action to sell the land containing Moses Cemetery, the Appellate Court reversed the

circuit court’s grant of mandamus relief. Id. at 196-97.

We subsequently granted the Coalition’s petition for writ of certiorari, Bethesda

African Cemetery Coalition, et al. v. Housing Opportunities Comm’n of Montgomery

Cnty., 486 Md. 96 (2023), agreeing to address the following questions:

1. Did the Appellate Court err in holding – on an issue of first impression –

that BR § 5-505 is nothing more than a “quiet title” statute, providing

land owners with an optional proceeding that they may choose to institute

when selling land containing a burial ground if they wish to convey a

“clean” title to the realty?

2. Under Maryland law, does a court of equity need to assess whether (and

if so, on what conditions) a property owner can sell land containing a

burial ground for non-burial use in view of the 1829 decision of the

United States Supreme Court in Beatty v. Kurtz, which (applying

Maryland law) charged courts of chancery operating pursuant to their

equity powers “to preserve the repose of the ashes of the dead and the

religious sensibilities of the living,” as well as subsequent decisions by

this Court and other courts?

II

Standard of Review

Whether the circuit court had the power to issue a writ of common law mandamus

is a question of law that we review de novo. Elsberry v. Stanley Martin Cos., LLC, 482 Md.

159, 178 (2022). We also review questions of statutory interpretation de novo. Id.

35

III

Discussion

“[C]ommon law mandamus is an extraordinary remedy that is generally used to

compel inferior tribunals, public officials or administrative agencies to perform their

function, or perform some particular duty imposed upon them which in its nature is

imperative and to the performance of which duty the party applying for the writ has a clear

legal right.” Mayor and City Council of Balt. v. ProVen Mgmt., Inc., 472 Md. 642, 669-70

(2021) (internal quotation marks and citation omitted). A writ of mandamus will only issue

“where the law has established no specific remedy, and where in justice and good

government there ought to be one.” Wilson v. Simms, 380 Md. 206, 217 (2004) (citation

omitted). Thus, a writ of mandamus will not issue where there is “any ordinary adequate

legal remedy.” Priester v. Balt. Cnty., 232 Md. App. 178, 187-88 n.8 (2017) (quoting

George’s Creek Coal & Iron Co. v. Allegany Cnty. Comm’rs, 59 Md. 255, 259 (1883)).

Additionally, “unless a legal right and a corresponding duty are clearly established,

there is no ground for the issuance of a mandamus.” Buchholtz v. Hill, 178 Md. 280, 288

(1940); see also Balt. Cnty. v. Balt. Cnty. Fraternal Order of Police, 439 Md. 547, 578

(2014) (“A court cannot grant a writ of mandamus, … where the provisions governing the

duty sought to be compelled or the entitlement to that duty claimed is doubtful.”).

The Coalition argues that a seller of the type of burial ground described in

BR § 5-505, arguably including Moses Cemetery, must seek judicial approval if the sale

contemplates that the burial ground will be used (or will continue to be used) for purposes

36

other than burial.25 According to the Coalition, should a seller fail to file a BR § 5-505

action, the correct enforcement mechanism is for an interested person to seek extraordinary

relief, in the form of a writ of mandamus, to compel the seller to file suit.26

HOC contends that the Coalition largely is making “political arguments” and that

“any debate concerning the transfer of burial grounds is properly left to the legislature.”

HOC also adopts the Appellate Court’s reasoning, arguing that BR § 5-505 is a quiet title

statute that allows a seller to bring an action to convey a burial ground free of all claims.

Thus, according to HOC, BR § 5-505 imposes no duty on it to file an action under the

statute, and therefore mandamus relief is unavailable to the Coalition.

25

The Coalition noted in its brief that Macedonia Baptist Church traces its heritage

back to the African River Road Community, and that BACC is a nonprofit working to

preserve the history of Black people in the area. The Appellate Court held that at least the

three descendants of individuals buried in Moses Cemetery have standing as “persons in

interest” under Maryland Rule 14-401(c) and § 14-121(a)(4) of the Real Property Article

(“RP”), and it further noted that Reverend Adebayo and BACC could likely claim to have

standing because of a “cultural affiliation” with “someone who was or may have been

interred” in Moses Cemetery. Adebayo, 258 Md. App. at 149 & n.9, 160 & n.18. HOC has

not asserted that the Appellate Court’s standing analysis is incorrect. We will not conduct

any additional analysis regarding standing.

26

The Coalition does not explain what enforcement, if any, is available when a

private individual or company – who cannot be compelled by a writ of mandamus – seeks

to sell a burial ground. HOC concedes that it is a quasi-governmental entity, and thus it

may be compelled to perform an action by a common law writ of mandamus in appropriate

cases. As the Appellate Court noted, HOC has waived any argument that it should not be

subject to a writ of mandamus to comply with BR § 5-505 on the ground that the alleged

statutory duty “is not one that is imposed upon HOC in its capacity as a governmental or

quasi-governmental entity” but rather is “one that is allegedly imposed upon anyone who

sells a certain kind of burial ground for another purpose[.]” Adebayo, 258 Md. App. at 148

n.7.

37

We think that both parties have misunderstood BR § 5-505 and the relevant case

law, particularly given the larger historical and legal context. BR § 5-505 is a quiet title

statute, but it is not only a quiet title statute: it allowed (and continues to allow) transacting

parties to remove certain restrictions in the chain of title that would prevent other uses of

certain burial ground land, thus facilitating the sale of those burial grounds when it is

“desirable” that they be used for a different purpose.27 However, at the same time, BR § 5-

505 recognizes the importance of protecting the repose of the deceased and the feelings of

the living – even as the needs of the living change and time moves on. Accordingly, BR § 5-

505 and its predecessor statutes have not abrogated the common law of burial places that

had developed before the first version of the statute was enacted, and that continues to

develop today. It follows that the extraordinary remedy of mandamus that the Coalition has

27

Respectfully, we disagree with Justice Watts’s view that our description of

BR § 5-505 as designed to remove restrictions in the chain of title and the Appellate

Court’s description of § 5-505 as providing an action to quiet title are “just two ways of

saying the same thing[.]” Dissenting Op. of Watts, J., at 1-2. Quiet title actions adjudicate

ownership of land and can sort out competing claims by those with alleged interests in land.

See Wilkinson v. Bd. of Cnty. Comm’rs of St. Mary’s Cnty., 255 Md. App. 213, 259 (2022)

(“The purpose of a quiet title action is to protect the owner of legal title from being

disturbed in his possession and from being harassed by suits in regard to his title[.]”)

(cleaned up), aff’d, 483 Md. 590 (2023). Questions concerning legal ownership of the land

itself are different from questions concerning the applicability of restrictions on how that

land can be used, such as those validly imposed through restrictive covenants or other

mechanisms. See Logan v. Dietz, 258 Md. App. 629, 672-73 (2023) (discussing

architectural control and use restrictions imposed by, alternatively, restrictive covenants

and homeowners’ associations). Quiet title actions determine and memorialize ownership

interests in land as a matter of law. Although they are designed to discern and enforce legal

ownership, such as when legal ownership has been acquired by adverse possession, they

are not designed to change legal ownership or to alter overarching use restrictions that run

with the land simply when it is deemed “desirable” to do so. Accordingly, BR § 5-505 is

more than a quiet title statute.

38

sought here is unavailable: there is ordinary relief available to the Coalition – an action

seeking equitable relief for an alleged violation of a specific right protected under the

common law of burial places. Thus, as the Appellate Court correctly held, HOC is not

required to file an action under BR § 5-505 before selling the property containing Moses

Cemetery. However, if the would-be seller of a qualifying burial ground elects not to file

an action under BR § 5-505, a person with standing may file a claim seeking appropriate

relief. In addition, a person with standing may file a claim with respect to a burial ground

that is not covered under BR § 5-505 – i.e., a burial ground where lots have not been sold

or where deeds have not been executed and certificates have not been issued to buyers of

lots.

A. An Extraordinary Writ Is Unavailable Because This Dispute Is Within the

Circuit Court’s General Equitable Powers.

The first problem with the Coalition’s position here is that it disregards the common

law of burial places, and the possibility of relief under its principles, which demonstrates

why extraordinary relief in the form of a writ of mandamus is inappropriate.

But, before we address the common law of burial places, it is important to

acknowledge that the General Assembly has legislated extensively with respect to some

aspects of burial. Typically, these statutory provisions pertain to more contemporary

methods of burial than were the norm when the common law of burial places began to

develop. Thus, Maryland statutes regulate (among other things) commercial cemeteries

(see BR § 5-102(a) (excluding certain other types of cemeteries), perpetual care cemeteries

(see id. §§ 5-603, 5-604), preneed contracts (see id. §§ 5-704, 5-705), licensed individuals

39

who bury and transport human remains (see Md. Code Ann., Health-Gen. § 4-215 (2023

Repl. Vol.), and particular lots and crypts that are formally documented and sold (see BR

§§ 5-503, 5-504). Where the General Assembly has legislated in this area, the common law

of burial places has no application. However, where the General Assembly has not covered

subjects that fall under the common law of burial places, there remains a gap in Maryland

that this doctrine can fill. Most pertinent to this case, the General Assembly has not filled

that gap with respect to informal, nominal-fee cemeteries like Moses Cemetery. Thus, it is

appropriate for us to consider how the common law of burial places may apply in Maryland

cases such as this one.

The common law of burial places is both unique to the United States, and unique

within the United States. Perhaps for that reason, it has been described as “a difficult area

for the uninitiated to navigate.” Marsh, When Dirt and Death Collide, supra, at 59. Indeed,

courts have struggled over the years in developing this area of law. As discussed above,

the common law inherited from England – so helpful and familiar in other contexts –

provided little guidance to the courts in difficult, emotional disputes concerning burial

places and the remains of the deceased. See, e.g., Larson, 50 N.W. at 238 (noting that courts

“were at first slow to realize the changed condition of things” after the rejection of

ecclesiastical law in the United States and that “English common-law authorities are not

very helpful or particularly in point”).

Nevertheless, the courts did develop a body of law to resolve these disputes. In so

doing, they drew heavily from the decisions from other state courts, developed the law

40

incrementally, and sought to harmonize their decisions to develop a fairly consistent legal

framework. E.g., Wilson v. Read, 68 A. at 39 (“The cases are numerous which involve

controversies as to the place of burial of a deceased relative ... or the diversion to other

purposes of land once dedicated for use as a burial place[.]”); Radomer Russ-Pol

Unterstitzung Verein of Balt. City v. Posner, 176 Md. 332, 339 (1939) (looking to “the

authorities” for guidance, including cases from New Hampshire, New York, and

Louisiana). Rather than creating bright-line rules, this body of law developed around

general principles that could be applied by courts of equity (and, today, by Maryland’s

circuit courts) to balance competing concerns and resolve challenging disputes. Many

principles can be distilled from the common law of burial places, and over the years there

have been several attempts to record some of them. See, e.g., Ruggles Report at 58-59;

PERLEY, supra, at Preface (“In this volume it is endeavored to show the principles that

underlie all law concerning dead human bodies.”); Marsh, When Dirt and Death Collide,

supra, at 59-62. We do not attempt to detail all of the potentially applicable principles here.

Instead, we will briefly discuss a handful of principles by way of illustration, to show how,

where it has not been supplanted by statute, the common law of burial places supplies the

appropriate legal framework to adjudicate concerns like those brought by the Coalition.28

28

To be clear, we do not envision a person with standing asserting a claim for relief

captioned as a cause of action generally under the “common law of burial places.” Rather,

a claim for relief should be stated in terms of a specific right protected under the common

law of burial places – e.g., the right of sepulcher (to the extent it is included under the

common law of burial places) or the right to interment. See note 3 above. In the prayer for

41

First, when interments are made in land, the land becomes a unique subtype of real

property that is subject to the jurisdiction of a court of equity. See, e.g., Beatty, 27 U.S. at

584-85 (explaining that desecration of a burial ground is “a public nuisance” that can be

remedied by a court of equity, operating by injunction “to preserve the repose of the ashes

of the dead, and the religious sensibilities of the living”); Hines v. State, 149 S.W. 1058,

1059 (Tenn. 1911) (“When land has been definitely appropriated to burial purposes, it

cannot be conveyed or devised as other property ... the then owner holds the title to some

extent in trust[.]”). Put another way, the common law of burial places attaches when human

remains are interred in land. Likewise, buried human remains themselves are “in the

custody of the law,” Radomer, 176 Md. at 339, and “subject to the control of a court of

equity.” Unger v. Berger, 214 Md. App. 426, 434 (2013) (quoting Dougherty v.

Mercantile-Safe Deposit & Trust Co., 282 Md. 617, 620 (1978)).

Second, while the remains of the dead rest in the land, the dead and their monuments

should be protected. Thus, the dead generally cannot be disturbed unless there is good

reason to do so. This includes disturbances through disinterment, see Dougherty, 282 Md.

at 620 (“The dead are to rest where they have been laid unless reason of substance is

brought forward for disturbing their repose.” (quoting Yome v. Gorman, 152 N.E. 126, 129

relief, a plaintiff may seek various equitable remedies for a violation of a specific right

protected under the common law of burial places, such as an injunction to prevent

desecration of a grave, or an order directing the disinterment of human remains because

the ground has become unsuitable for burial. Whether a court should order these or other

remedies, and the details of such remedies, will depend on the circumstances and equities

of the particular case.

42

(N.Y. 1926)); Unger, 214 Md. App. at 434 (disinterment “is a disfavored action” and

“generally is granted only for good cause”), as well as disturbances through incompatible

uses of the land. See, e.g., Concerned Loved Ones and Lot Owners Ass’n of Beverly Hills

Mem. Gardens v. Pence, 383 S.E.2d 831, 835-36, 838 (W. Va. 1989) (discussing mining

operations “in or under cemetery grounds” and concluding that “the next of kin of those

buried ... as well as those who own land for burial in the cemetery, have a cause of action

to prevent ... the unlawful desecration of such cemetery”); Boyce v. Kalbaugh, 47 Md. 334,

335-36 (1877) (affirming injunction against constructing a “store-room” on burial ground

land); Stoker v. Brown, 583 S.W.2d 765, 766-68 (Tenn. 1979) (holding that a court of

equity could enjoin a landowner’s cultivation of a burial ground); Roundtree v. Hutchinson,

107 P. 345, 347 (Wash. 1910) (same). Disturbances, of course, also include destruction of

the burial ground or other desecration. Beatty, 27 U.S. at 584-85.

Third, at least as far as the common law of burial places is concerned, 29 land

containing the remains of the deceased is freely alienable – meaning it may be bought and

29

As mentioned earlier, there may be restrictions on selling burial ground land based

upon other areas of law, such as statutory and regulatory restrictions and property law

principles (which may turn on the language in deeds conveying the property). See, e.g.,

Brendle v. German Reformed Congregation, 9 Casey 415 (Pa. 1859). Brendle involved

applying property law principles and interpreting statutory requirements to determine

whether land was alienable. There, the trustees of a congregation received title to land in

fee simple and then executed a declaration of trust that purported to limit the congregation’s

use of the land to a “house of religious worship ... [and] for a place to bury their dead.” Id.

at 416. Over a hundred years later, a court of equity attempted to enforce this restriction by

enjoining the congregation and its trustees from mortgaging the portion of the land that

actually contained a church and burial ground, but allowing the congregation to mortgage

43

sold privately, whenever transacting parties so desire. This is because buying and selling

this land ordinarily does not affect a court of equity’s ability to protect the repose of the

deceased and the feelings of the living. See, e.g., Boyce, 47 Md. 335-37. Courts have

described this principle differently. Some cases explain that ownership of the land (and

other property law concepts, such as issues concerning “claim[s] of title” and “paper title”)

are separate from the rights with respect to burial places that a court of equity can enforce.

Thus, in appropriate circumstances, these rights can include performing further burials at

a site or “protect[ing] the graves of the buried dead from desecration” – regardless of who

owns the land. Frost v. Columbia Clay Co., 124 S.E. 767, 769-70 (S.C. 1924) (Cothran, J.,

dissenting); see also Hines, 149 S.W. at 1059 (noting that, once “interments have there

been made, the then owner holds the title to some extent in trust ... and the heir at law,

devisee, or vendee takes the property subject to this trust[,]” and that rights with respect to

a burial site can be exercised “in a reasonable manner and at seasonable times, so as not to

unnecessarily injure the owner”).

the remainder of the land. The court of equity reasoned that “[t]he grant is for a charitable

use, and therefore a restraint on alienation may be tolerated[.]” Id. at 420, 423. Only the

court of equity’s refusal to enjoin mortgaging the remainder of the property was appealed.

Id. at 425. On appeal, the Supreme Court of Pennsylvania emphasized the alienability of

property, reasoning that the declaration of trust should be interpreted merely as

demonstrating that the congregation was holding the property for the limited purposes set

out by an applicable statute (rather than as creating a standalone restraint on alienation). In

support, the Pennsylvania Supreme Court noted that the declaration of trust was executed

only after “a complete fee-simple title in legal form passed ... to the trustees” and that the

declaration therefore conveyed “an equal title,” even though it was set out “in the form

usually adopted for conveying land to congregations under the Act of 1731[.]” Id. at 425.

44

Other decisions have instead couched these concepts and rights in property law

terms, explaining them in language that was more familiar at the time. Nevertheless, many

of these decisions reached the same results. For instance, some courts reasoned that using

land for burial creates a special kind of “easement against the fee” – meaning that “bare

legal title” to the land can be freely transferred, but that the land will pass “subject to” an

easement protecting the burial ground (and access to it) that can only be extinguished when

the burial ground is abandoned. Estate of Harding, 878 A.2d at 205; see also Hunter v.

Trustees of Sandy Hill, 6 Hill 407, 414 (N.Y. Sup. Ct. 1844) (noting that one can establish

good “paper title” to land, but still not be able to use a burial ground on the land for any

purpose, if the ground has not ceased to be used as a burial ground); Heiligman v.

Chambers, 338 P.2d 144, 148 (Okla. 1959) (noting that “naked legal title ... passes subject

to the easement created”).30

30

That is not to say that there are no cases reaching different results. As mentioned

earlier, over the years a few non-Maryland decisions have mechanically applied traditional

property law principles to these sorts of disputes, without recognizing the common law of

burial places. These cases have sometimes reached results that failed to protect burial

places, and that caused the judicial decisionmakers of the time some apparent

consternation. See, e.g., Windt v. German Reformed Church, 4 Sand. Ch. 471, 474 (N.Y.

Ch. 1847); Wooldridge v. Smith, 147 S.W. 1019, 1021-22 (Mo. 1912) (determining that,

because a burial ground was private rather than public and was not mentioned in a

conveyance, there was no right under the “cold law” of traditional property principles to

prevent desecration of the graves). Commentators later criticized these sorts of approaches.

See, e.g., JACKSON, supra, at 247 & n.27 (characterizing Wooldridge and other like cases

as “based on technical dogma” and “hampered by an astigmatism which has prevented [the

courts] from seeing that a court of equity is free to announce a law of burial and preserve

the sanctity of burial places”).

45

Fourth, eventually, the use of land as a burial ground might end. This is generally

known as abandonment. There are multiple paths to abandoning a burial ground. Often,

abandonment occurs through eminent domain or some other lawful process, where the land

is put to a different use and any human remains are respectfully disinterred and reinterred

elsewhere.31 E.g., Church of the Holy Spirit of Wayland v. Heinrich, 204 N.E.3d 363, 364

(Mass. 2023) (dwindling membership in a church compelled it to sell its property and

relocate buried remains, in compliance with the church’s own regulations, when burial lots

had been sold “subject to” those regulations); Appeal of Kincaid, 66 Pa. at 421 (burial

ground became abandoned by an act of a state legislature outlawing further burials and

providing for removal of interred bodies). Burial grounds can also be abandoned by

consent, and the effect is the same. Clarke v. Keating, 183 A.D. 212, 213-15 (N.Y. App.

Div. 1918) (burial ground where all bodies were reinterred elsewhere by consent had “lost

its sacred character [and] should not be withheld from serving the needs of the

community”).

31

Some states have enacted statutory processes for declaring burial grounds

abandoned and removing and reinterring any buried remains. See, e.g., Ala. Code

§§ 11-47-60 to 11-47-74. As we discuss below, our view is that BR § 5-505 is a similar

type of statutory procedure that allows certain burial grounds to be abandoned and sold

through process of law. See Rayner v. Nugent, 60 Md. 515, 520 (1883) (predecessor to

BR § 5-505 “furnished additional facilities for parties interested in abandoned burial

grounds” to sell such grounds). However, the owner of a burial ground has “the lawful

power and authority” to seek to abandon a burial ground without going through the BR § 5-

505 process, subject to the rights of lot holders or other appropriate persons to pursue their

rights, including the rights to “remov[e] the remains previously buried[,]” see id. at 519,

and to seek to protect the repose of the dead.

46

Burial grounds can also be deemed abandoned through a sufficient showing of

neglect and disuse or destruction.32 However, this is a high bar. Courts and commentators

have differed in discussing the requirements of abandonment by this method, and there is

variation in how the principle is applied. See Mayes v. Simons, 8 S.E.2d 73, 75 (Ga. 1940)

(“As to what will constitute abandonment of a cemetery, the decisions of the several courts

... do not appear to be in perfect accord.”). Some courts appear to have taken a strict view,

holding that this type of abandonment cannot occur “until the bodies reposing there are

removed by friends or relatives or by proper public authority[.]” Bowen v. Hooker, 372

S.W.2d 257, 259 (Ark. 1963); see also Bitney v. Grim, 144 P. 490, 491 (Or. 1914) (“Having

been thus dedicated [as a burial ground] ... the premises are subject to that use so long as

bodies remain buried there[.]”); Frost, 124 S.E. at 768 (“[A] graveyard may not be

abandoned except by the removal of the remains of the dead[.]”); but see Frost, 124 S.E.

at 770 (Cothran, J., dissenting) (“I am of opinion that ... where the beneficiaries of the

dedication of land for a graveyard have conducted themselves toward it as the plaintiff and

his relatives have done ... the abandonment is complete, regardless of the matter of the

removal of the bodies buried there.”).

Other courts have taken a more moderate approach, suggesting that abandonment

through neglect is possible even while the remains of the dead remain interred, so long as

there is a sufficient showing to support abandonment. Among other things, these courts

32

This type of abandonment is often asserted by landowners or purchasers of land

as a defense. See, e.g., A.F. Hutchinson Land Co. v. Whitehead Bros. Co., 218 A.D. 682,

684 (N.Y. App. Div. 1926); Frost v. Columbia Clay Co., 124 S.E. 767, 768 (S.C. 1924).

47

have looked to how long it has been since interments were made,33 whether the public has

preserved the area “as a resting place for the dead,” the physical condition of the burial

ground, and whether it has been “treated or neglected by the public as entirely to lose its

identity as a graveyard, and is no longer known, recognized, and respected ... as such[.]”

Mayes, 8 S.E.2d at 75-76; see also Boyd v. Brabham, 414 So. 2d 931, 935 (Ala. 1982).

Commentators in this area are more unified than the courts – they generally agree that

abandonment should be able to occur while human remains are still interred in land, if a

sufficient factual showing is made to satisfy the demanding requirements of abandonment.

See, e.g., PERLEY, supra, at 199 (“[W]hen all parties in interest appropriate the burial

ground to other uses and purposes, or allow it to be destroyed or lose its identity as a burial

place, and no longer regard it as such, it is a legal abandonment at common law.”);

JACKSON, supra, at 395-97 (generally, abandonment requires “disinterment, and

33

The length of time is only one factor that these courts have considered, and it is

different from an otherwise-applicable statutory limitations period. See, e.g., Hunter v.

Trustees of Sandy Hill, 6 Hill 407, 414 (N.Y. Sup. Ct. 1844) (describing the time period as

“[w]hen these graves shall have worn away; when they who now weep over them shall

have found kindred resting places for themselves; when nothing shall remain to distinguish

this spot from the common earth around, and it shall be wholly unknown as a grave yard”);

PERLEY, supra, at 199 (suggesting that a period of “sixty years, for instance” might support

abandonment). It is also different from a laches analysis, although certain considerations

may inform both an abandonment and a laches inquiry. Courts have taken differing

approaches in applying laches within the common law of burial places, and their analyses

are highly fact-specific. Compare St. Peter’s Evangelical Lutheran Church v. Kleinfelter,

98 Pa. Super. 146, 153-54 (Pa. Super. Ct. 1929) (“Laches in a general sense is the neglect,

for an unreasonable and unexplained length of time ... to do what in law should have been

done.... We do not find that the doctrine of laches has ever been applied in a proceeding to

restrain the desecration of burial grounds.”), with Mayes, 8 S.E.2d at 74 (“[T]he verdict for

the defendants may be sustained upon the theory of either laches or estoppel.... [T]he

verdict is sustainable also on the theory of abandonment[.]”).

48

reinterment ... so far as possible[,]” but “[n]eglect resulting in loss of identity” can support

abandonment, such as when a burial ground has been “permanently appropriated” by the

public to an inconsistent use and “has become impossible to use ... as a graveyard”)

(footnote omitted);34 14 Am. Jur. 2d Cemeteries § 25 (May 2024 update) (“The actual

condition of the cemetery ... and whether the cemetery is recognizable and known to the

general public are matters going to the question of abandonment. However, where evidence

shows that there are no tombstones and no burials have taken place in many years, a finding

... [of] abandon[ment] is supported.”).

The final principle we discuss here is flexibility. The common law of burial places

can adapt to address emerging issues, and courts of equity can articulate new principles of

law in appropriately balancing the needs of the living with protecting the deceased,35 with

34

In Maryland, the Jackson treatise has been favorably cited to in the past for other

propositions. See Snyder v. Holy Cross Hosp., 30 Md. App. 317, 329 (1976) (“The rule set

out by Jackson is the law of this State.”); Hill v. Towson Realty, Inc., 221 Md. 389, 397

(1960) (describing Jackson as a “well-known author” and “accept[ing], without deciding,

what Mr. Jackson says as being the law”). However, it does not appear that Maryland’s

appellate courts have yet adopted a precise standard for abandonment of a burial ground.

35

A word of caution is appropriate here. The power to protect the interests of the

deceased is tempered by another principle that courts and commentators alike have

recognized: “As between the interests of the dead in silent and undisturbed repose and the

interests of the living in material growth and progress ... the interests of the living prevail.”

BERNARD, supra, at 4; see also Marsh, When Dirt and Death Collide, supra, at 62 (“[T]he

needs of the living trump the interests of the dead.”); Windt, 4 Sand. Ch. at 473 (“The

principle of the bill is utterly impracticable; else the whole earth will in time be

appropriated for the remains of the dead.”).

49

their decisions subject to review on appeal. For example, courts have resolved disputes

about the size of burial grounds, enjoining landowners from reducing the size of lands set

apart for burial. See Vidrine v. Vidrine, 225 So. 2d 691, 697 (La. Ct. App. 1969). Courts

have enjoined desecration of burial grounds. See, e.g., Roundtree, 107 P. at 345, 347;

Heiligman, 338 P.2d at 146, 150. For certain family burial grounds where interments were

still being made (but where ownership of the land had since changed hands), courts have

allowed landowners to “make and enforce regulations as to how burials shall be made”

while ensuring that the regulations “are consistent with the manner in which burials have

been accomplished in the past.” Roberts v. Stevens, 389 So. 2d 782, 785 (La. Ct. App.

1980). In certain circumstances, courts have also afforded specific rights to those who

remember the deceased, such as entering the land to visit gravesites and to maintain the

appearance of the burial ground. See Estate of Harding, 878 A.2d at 205 (discussing the

Additionally, we do not suggest that a court of equity should readily or haphazardly

articulate new principles of the law. Like all developments to the common law, courts

should ensure that their efforts are careful and gradual. Our prior cases have not covered

all of the subjects discussed in the out-of-state cases cited here. Our citation of these cases

should not be read to suggest how a circuit court should rule when asked to provide a

remedy under the common law of burial places that has been applied elsewhere, but which

has not been the subject of a case in Maryland. See also note 41 below. In addition, courts

must be cognizant of any constitutional provisions or statutes that may constrain their

ability to provide equitable relief. Courts also should consider the relevant interests and

opinions before rendering their decisions. For example, the Real Property Article requires

that owners of burial sites, where the majority of interred persons have been buried for over

50 years, consult “the Director of the Maryland Historical Trust about the proper treatment

of markers, human remains, and the environment surrounding the burial site[,]” but

provides that the director’s advice is “not binding[.]” Md. Code, Real Prop. (“RP”)

§ 14-121.1(b), (c) (2023 Repl. Vol.). In appropriate cases, when advice such as this is

available, we expect that a circuit court would consider it.

50

rights of “ingress, egress, and the ability to maintain the area around the grave in a

traditional manner”); Hines, 149 S.W. at 1059 (“[The descendants] also have the right to

visit the cemetery for the purpose of repairing, beautifying, and protecting the graves and

grounds around the same[.]”). And even after a burial ground is abandoned, if disinterment

is appropriate,36 a court of equity has power to ensure that disinterment and removal of

human remains is performed reasonably according to the preferences of the persons

interested. See Partridge v. First Independent Church of Balt., 39 Md. 631, 637-38 (1874)

(noting the right to remove human remains when a ground “cease[s] to be a place of burial”

and that the right includes “removing the bodies and monuments to some other place of [a

certificate holder’s] own selection, or that, on his failing to do so, such removal should be

made by others” (quoting Appeal of Kincaid, 66 Pa. at 421)); cf. Walser v. Resthaven Mem.

Gardens, Inc., 98 Md. App. 371, 382 (1993) (“[T]he ability of equity to resolve disputes

as to contemplated disinterments ha[s] clearly been recognized in Maryland.”).

Additionally, when the circumstances counsel against an all-or-nothing result in protecting

a burial ground, courts can use the common law of burial places to fashion nuanced relief

36

Although some cases suggest that disinterment is always required for a burial

ground to be abandoned, others recognize that it is not always practicable or possible to

disinter human remains. See, e.g., Wilson v. Read, 68 A. 37, 38-39 (N.H. 1907) (refusing

to disinter human remains because the remains had disintegrated to the point where

disinterment was not possible).

51

that appropriately balances the relevant interests, consistent with applicable constitutional

and statutory provisions.37

Indeed, in a case that bears some similarities to the dispute here, at the request of a

landowning party, a court of equity in Georgia went so far as to judicially supervise the

construction of a highway expansion on land containing a disused burial ground. 38 See

Birdine v. Moreland, 579 F. Supp. 412, 413 (N.D. Ga. 1983) (discussing the case);

Robinson v. Department of Transp., 364 S.E.2d 884, 884-85 (Ga. Ct. App. 1988) (same).

37

If a property owner responds to a claim for relief under the common law of burial

places by asserting that awarding relief would constitute a judicial taking in violation of

the Fifth Amendment, the circuit court should consider and address that argument. We note

that the United States Supreme Court has not decided whether “judicial takings” claims are

cognizable under the Fifth Amendment. See Stop the Beach Renourishment, Inc. v. Fla.

Dep’t of Envtl. Prot., 560 U.S. 702 (2010); see also Petro-Hunt, L.L.C. v. United States,

126 Fed. Cl. 367, 378-79 (Fed. Cl. 2016) (discussing the opinions of several Justices in

Stop the Beach); Kenneth A. Stahl, The Trespass/Nuisance Divide and the Law of

Easements, 86 Geo. Wash. L. Rev. 966, 1006-08 (2018) (noting that a plurality in Stop the

Beach was of the view that a judicial taking could occur when a court alters the common

law to eliminate an established property right, and questioning the “coherence” of the

plurality’s proposed test); see generally Barton H. Thompson, Jr., Judicial Takings, 76 Va.

L. Rev. 1449 (1990). Nothing in this opinion should be construed as in any way endorsing

unconstitutional takings of private property.

38

The court was the Superior Court for Fulton County. In 1887, by statute, Georgia

eliminated the distinction between law and equity, allowing its superior courts to “settle in

one suit” both legal and equitable controversies. See Moore v. Robinson, 55 S.E.2d 711,

719 (Ga. 1949) (citing Georgia’s Uniform Procedure Act of 1887, 1887 Ga. Laws p.64).

The superior court determined that it “must balance the equities of the need for the public

improvement with the need to preserve the dignity of the memory of the ancestors of those

persons, loved ones and heirs who have an interest in these proceedings[.]” First Order and

Decree of Judicial Supervision Relative to Graves and Human Remains on Condemned

Property at 3, Ga. Department of Transp. v. 4.414 Acres of Land, No. C-74635 (Supr. Ct.

Fulton Cnty., Ga. Mar. 10, 1982) (“Fulton County Order”). Accordingly, the court

exercised “judicial supervision relative to the recognition of burial rights and of the remains

of those persons who were buried in [the] cemetery site.” Id.

52

The burial ground, which was once known as Gilbert Cemetery, contained the bodies of

several individuals, including enslaved persons, who were buried beginning in the 1800s

and continuing through the mid-1900s. Birdine, 579 F. Supp. at 413; Robinson, 364 S.E.2d

at 885. By the 1980s, around the time of the planned highway expansion, the burial ground

had been desecrated, erased, and largely forgotten, and various buildings including a

“motel, a restaurant, [and] repair shops” had been erected on portions of the land. Robinson,

364 S.E.2d at 884-85. After the Georgia Department of Transportation acquired the land

through condemnation, it discovered evidence of a burial ground and brought the issue to

the attention of a court of equity. That court, the Superior Court for Fulton County, then

held multiple hearings and made several rulings.

Among other things, the court determined that the Georgia Department of

Transportation had “fee simple title” to the land, unencumbered by any restrictions,

because it had successfully condemned the land. However, because efforts to memorialize

the burial ground could coexist with the planned highway expansion (which would only

require a “portion” of the land), and because “no good purpose” would be served by further

excavating the burial ground, the court ultimately entered an order allowing for a

“landscape plan” and a “suitable memorial” to be established. See First Order and Decree

of Judicial Supervision Relative to Graves and Human Remains on Condemned Property

at 2-5, Georgia Department of Transp. v. 4.414 Acres of Land, No. C-74635 (Supr. Ct.

Fulton Cnty., Ga. Mar. 10, 1982). It also ordered, among other things, that the planned

highway construction could proceed in the interim, subject to the condition that there be

53

“no excavations” in a particular portion of the property where the burial ground was likely

to exist. Id. at 6.39,40

In sum, although the common law of burial places is not always easy to discern and

apply, it nevertheless provides the appropriate framework to adjudicate disputes over burial

grounds that are not governed by statute.41 As we explain in more detail below, even if the

39

The court made one exception to its ruling regarding excavation, directing that

the Department of Transportation accompany [a descendant of someone who

had been buried at the site] to the property … and mark the location where

[the descendent] states that her ancestor is buried, and the Department shall,

by appropriate means, with the assistance of a licensed funeral director,

excavate at the site located by [the descendent] and attempt to locate the

remains of … [the] ancestor and relocate any remains [to another specified

cemetery]. Expenses of this are to be borne by the Department of

Transportation, and the Department will attempt to choose a time suitable to

[the descendent] so that she can be present during the disinterment and

reinterment.

Fulton County Order at 4.

40

Our discussion of the Gilbert Cemetery case as an example of how the common

law of burial places has been employed in other jurisdictions does not suggest that a

Maryland court would or should apply that law in the same manner. Whether it would be

appropriate to do so is not before us. We note that Maryland’s condemnation statute

provides for compensation if human remains must be disinterred as a “reasonably

necessary consequence of condemnation[.]” RP § 12-112(a).

41

As Justice Watts notes in her dissenting opinion, our discussion of the common

law of burial places leaves room for argument about how the law should apply to resolve

burial ground disputes in Maryland – including the dispute over Moses Cemetery. See

Dissenting Op. of Watts, J., at 3. Although we have discussed the approaches of other state

courts and the guidance contained in secondary sources, these authorities do not necessarily

state the law in Maryland. The task of charting the course of our law and applying it to

specific factual disputes falls in the first instance to our circuit courts. These courts are

54

Coalition were correct that the procedure in BR § 5-505 is mandatory, when compared to

the common law of burial places it would provide only narrow and less flexible relief.42 In

any event, because there is an existing legal framework by which to seek ordinary relief to

protect burial grounds like Moses Cemetery, extraordinary relief in the form of a writ of

mandamus is not available. See Wilson v. Simms, 380 Md. at 217 (a writ of mandamus will

only issue “where the law has established no specific remedy, and where in justice and

closest to the facts, they hear from the interested persons, and they will have a strong sense

of the equities, which they can draw upon to fashion appropriate remedies. As we

mentioned above, the common law of burial places embraces flexible equitable principles

that can evolve in response to novel facts. Specific applications (and evolutions) of these

principles generally should work their way through our courts before we opine on them.

42

The criminal laws generally prohibiting removing and destroying buried human

remains and funerary objects, CR §§ 10-402, 10-403, 10-404, in conjunction with certain

statutory provisions that relate to a few of the rights we have discussed, see RP § 14-121

(allowing interested persons to request access to a burial site, providing suggested language

for an access agreement, and discussing liability under such an agreement); RP § 14-122

(allowing counties and municipal governments to take certain actions to maintain burial

sites), do not show that the General Assembly has dealt with the entire subject matter.

Indeed, the General Assembly has not addressed several potential issues discussed in the

common law that likely could recur with respect to burial grounds in Maryland. For

instance, and particularly with respect to historic family burial grounds and informal,

nominal-fee cemeteries, it appears that the General Assembly has not spoken at all with

respect to, among other things: what rights of interment exist (if any) in burial grounds

where lots have not been sold and documented; whether, and under what circumstances,

burials can continue at an active family burial ground or other informal burial site with

unused plots; whether, and under what circumstances, a landowner can buy land containing

a burial ground and develop it or put it to different uses; whether, and how, disinterment

must occur if a landowner seeks to change the use of burial ground land against the wishes

of the surviving families of the deceased; what rights, if any, interested persons might have

to seek to disinter the remains of loved ones (and to oversee that process) if land is later

put to non-burial uses against their wishes; whether a landowner can seek to have a burial

ground declared abandoned; and what criteria can be considered in determining whether a

burial ground is abandoned.

55

good government there ought to be one”); Priester, 232 Md. App. at 187-88 n.8 (a writ of

mandamus will not issue where there is “any ordinary adequate legal remedy”) (quoting

George’s Creek Coal & Iron Co., 59 Md. at 259).43

B. An Extraordinary Writ Is Also Unavailable Because BR § 5-505 Provides an

Optional Mechanism for Parties to Remove Certain Restrictions on Land Use

and to Quiet Title.

The second problem with the Coalition’s position is that it misunderstands the

purpose and effect of BR § 5-505. The Coalition argues that BR § 5-505 sets forth a

mandatory procedure “intended to protect the sanctity of the dead[.]” Although BR § 5-505

provides that a seller of a burial ground “may” bring an action for “a judgment for sale of

a burial ground for another purpose[,]” the Coalition contends that the statute should be

interpreted to require that such an action be brought before any sale can occur. According

to the Coalition, BR § 5-505 provides only statutory permission to seek to sell a burial

ground in certain circumstances, and such permission should be understood against a

general background prohibition on selling a burial ground without court approval, at least

when the transacting parties contemplate that the burial ground will be used for another

43

The availability of ordinary relief is an independent and sufficient ground to deny

mandamus relief, and so is central to the issue here. However, the appropriate amount of

detail to provide at this stage is subject to fair debate. Our colleagues in dissent have

asserted both that we have said too much about the common law of burial places and not

enough. Compare Concurring and Dissenting Op. of Booth, J., at 1, with Dissenting Op. of

Watts, J., at 1-2. Our approach has been to provide sufficient detail to show that there is an

existing legal framework under which the Coalition may seek relief, thus rendering

mandamus relief unavailable, and to point circuit courts to cases they may wish to consult

if and when the need arises, while at the same time avoiding opining on questions not

before us.

56

purpose after the sale. The Coalition further asserts that BR § 5-505 should be interpreted

as a mandatory “public interest” statute and read in light of “its predecessor statutes and

cases such as Beatty v. Kurtz[.]” Arguing that the history, context, and purpose of

BR § 5-505 must be considered, the Coalition urges that the circuit court was correct that

HOC was required to file a BR § 5-505 action.

In our view, however, after considering the language, history, context, and purpose

of BR § 5-505, the statute provides only an optional mechanism to sell a burial ground for

another purpose. The statute was not designed to overcome an otherwise always-applicable

bar to selling a burial ground for another purpose; there was no such general bar. Rather, it

was designed, in appropriate circumstances, to make selling a burial ground for another

purpose easier and more commonplace. BR § 5-505 thus operates separately from the

common law of burial places. Nevertheless, the statute is wholly consistent with the

common law, and indeed it appears that, in drafting it, the General Assembly codified some

of the common law’s protections.

1. Relevant Principles of Statutory Interpretation

“The goal of statutory construction is to discern and carry out the intent” of the

General Assembly. Westminster Mgmt., LLC v. Smith, 486 Md. 616, 644 (2024) (citation

omitted). We discern legislative intent not by considering text in isolation, but instead by

viewing it “within the context of the statutory scheme to which it belongs.” Nationstar

Mortg. LLC v. Kemp, 476 Md. 149, 169 (2021). Our review is holistic, “seeking to give

57

effect to all of what the General Assembly included and not to add anything that the General

Assembly omitted.” Westminster Mgmt., 486 Md. at 644.

Generally, as the Appellate Court noted, the word “may” in a statute “connotes

permission or authorization[,]” whereas “the term ‘shall’ in a statute indicates the

legislative intent that the statute be mandatory.” Adebayo, 258 Md. App. at 164-65.

Of course, a statute providing authorization or permission can sometimes have a

limiting effect. For instance, where a statute authorizes a particular way of taking an action,

that authorization can imply that other ways of taking the same action are not allowed.

Roselle Park Trust Co. v. Ward Banking Corp., 177 Md. 212, 220 (1939) (“A statute that

directs a thing to be done in a particular manner ordinarily implies that it shall not be done

otherwise.”). This can also occur when the action would be generally prohibited, absent

some express statutory authorization. See Office and Pro. Emps. Int’l Union, Local 2 (AFL-

CIO) v. Mass Transit Admin., 295 Md. 88, 96-97 (1982). Likewise, in certain limited

contexts, this Court has interpreted the word “may” in statutes designed to protect the

public from harm as mandatory. See, e.g., State v. Knowles, 90 Md. 646, 653, 655-56

(1900) (interpreting dental licensing language to require an examination when it read as

follows: “[a]ny person twenty one years of age, who ... holds a diploma ... in dental surgery

... and who is desirous of practicing dentistry in this State, may be examined by said board

... and after passing an examination ... a certificate shall be issued to such person”)

(emphasis added). This interpretation, however, is context-specific and an exception to the

general rule.

58

After we review the text of a statute, if we determine that the statute is unambiguous

– i.e., that the words of the statute are not susceptible of more than one reasonable

interpretation, either alone or when read as part of the larger statutory scheme – then our

inquiry usually ceases and we “apply the statute as written.” Williams v. Morgan State

Univ., 484 Md. 534, 546 (2023) (cleaned up); see also Bennett v. Harford Cnty., 485 Md.

461, 485-86 (2023) (describing how ambiguity can arise). However, even when statutory

language is unambiguous, it can be useful to review the legislative history and historical

context to confirm our interpretation or to “eliminate another version of legislative intent

alleged to be latent in the language.” See Blackstone v. Sharma, 461 Md. 87, 113 (2018);

see also Williams, 484 Md. at 555 (“Although we conclude that the text of the [statute] is

unambiguous, we note that our interpretation … is consistent with the Act’s purpose and

historical context.”). And if we determine that the statute is ambiguous, we “resolve the

ambiguity by searching for legislative intent in other indicia, including the history of the

legislation or other relevant sources intrinsic and extrinsic to the legislative process.”

Bennett, 485 Md. at 486 (cleaned up).

Ultimately, regardless of whether we find statutory language ambiguous, we must

arrive at “a reasonable interpretation, not one that is absurd, illogical, or incompatible with

common sense.” Comptroller v. FC-GEN Operations Investments LLC, 482 Md. 343, 380

(2022) (cleaned up). When possible, we also interpret statutes consistently with the

common law. Put another way, when the General Assembly’s intent “is unclear with regard

to abrogation, we will interpret the statute to be congruent with the common law.” Antonio

59

v. SSA Sec., Inc., 442 Md. 67, 74 (2015). “[This] rule of construction seeks to limit judicial

hair-splitting and reading acts of the Legislature as changing the common law when the

Legislature had no such intention. In theory, it might also cause legislatures to announce

clearly when it is their intent to abrogate the common law.” Id. at 74 n.7.

2. The Language of BR § 5-505 Shows That the Statute Provides an Optional

Procedure to Sell a Burial Ground for Another Purpose.

Bearing these principles in mind, we turn first to the relevant statutory language.

BR § 5-505 provides that an action “may” be brought to obtain a “judgment for sale of a

burial ground for another purpose”:

(a) An action may be brought in accordance with the Maryland Rules and a

court may pass a judgment for sale of a burial ground for another purpose

if:

(1) the ground has been dedicated and used for burial;

(2) burial lots have been sold in the burial ground and deeds executed or

certificates issued to buyers of the lots;

(3) the ground has ceased to be used for burial; and

(4) it is desirable to dispose of the burial ground for another purpose.

(b) If the court is satisfied that it is expedient or would be in the interest of

the parties to sell the burial ground, the court:

(1) may pass a judgment for the sale of the burial ground on the terms and

notice the court sets;

(2) shall order that as much of the proceeds of the sale as necessary be

used to pay the expenses of removing any human remains in the burial

ground, buying burial lots in another burial ground, and reburying the

remains; and

(3) shall distribute the remaining proceeds of the sale among the parties

according to their interests.

60

(c) A judgment for the sale of a burial ground passes to the buyer of the burial

ground the title to the burial ground free of the claims of:

(1) the owners of the burial ground; and

(2) the holders of burial lots.

Considering this language, we do not perceive any relevant ambiguity in

BR § 5-505. The word “may” in BR § 5-505(a) connotes an optional mechanism by which

to obtain a judgment for sale of a burial ground “for another purpose[,]” not the sole

mechanism by which to sell a burial ground. No other language in the statute undercuts

that interpretation. To be sure, the subsection also includes some requirements and

restrictions: if a party wants to bring an action, the action must be brought “in accordance

with the Maryland Rules[,]” and it can only be brought if, among other things, lots were

sold at the burial ground in question and certificates or deeds were issued to buyers.

Id. § 5-505(a). However, these restrictions do not control whether a burial ground may be

sold for another purpose; they control whether (and how) an action may be brought to

obtain a judgment for selling a burial ground for another purpose – a judgment that, among

other things, cuts off any claims of the owners of the burial ground and the holders of the

burial lots. Id. § 5-505(c).

We also see nothing in the language to indicate that the statute is intended to

abrogate the common law of burial places in Maryland. The statute does not reference the

common law, nor does its language suggest that it is generally intended to be the sole means

of resolving an aspect of disputes concerning burial grounds. Instead, it appears to provide

a procedure for selling certain burial grounds, along with certain protections (including

61

notice and providing funds to disinter and move human remains) that apply when its

procedure is invoked.

3. The History and Historical Context of BR § 5-505 Confirms This Interpretation.

Having concluded that the unambiguous language of BR § 5-505 provides only an

optional procedure that does not abrogate the common law, our inquiry could end.44

However, a review of the legislative history and historical context of the statute confirms

our understanding of its intent.

Although this statute has been in effect, in one version or another, for over 150

years, there is little legislative history to shed more light on the meaning of the statutory

language. The original version of the statute was enacted in 1868. In its original form, the

statute shared several features of the current enactment. It allowed a party to file suit to sell

certain grounds that had been “dedicated and used for the purposes of burial[,]” so long as

the ground was no longer used for burial and the court found that it was “necessary” and

“would be for the interest and advantage of the parties interested that the ground should be

44

In its opinion, the Appellate Court also discussed at length the meaning of “for

another purpose” in BR § 5-505(a), concluding that the phrase was ambiguous because it

supported two reasonable interpretations: it could refer only to the first time that a burial

ground was sold for another purpose, or it could refer to each time that an existing burial

ground is sold, if the transacting parties contemplate that the ground will be used (or will

continue to be used) for purposes other than burial. Adebayo, 258 Md. App. at 161-64.

However, the Appellate Court did not resolve the ambiguity. Instead, it “assum[ed], for the

sake of argument” that the second interpretation was correct – i.e., that “for another

purpose” simply meant for a purpose other than as a burial ground, regardless of the current

use of the land. Id. at 164. Because we conclude that BR § 5-505 provides an optional

mechanism to obtain a judgment, we do not need to consider whether “for another purpose”

is ambiguous and, if so, to determine precisely when a sale falls within that language.

62

sold[.]” 1868 Md. Laws 368-69, Ch. 211.45 Like it does today, the 1868 statute only applied

to burial grounds “in which lots have been sold and deeds executed or certificates issued

to the purchasers of such lots[.]” Id.

Cases from this time, however, shed light on the statute – both as to what it did, and

what it did not do. In Rayner v. Nugent, 60 Md. 515, 520 (1883), this Court considered a

45

The operative text of the 1868 statute provided:

[U]pon any bill being filed for the sale of any ground dedicated and used for

the purposes of burial in which lots have been sold and deeds executed or

certificates issued to the purchasers of such lots, provided such lots shall be

no longer used for burial purposes, the court may order notice to be given by

publication in one or more newspapers published in the city or county in

which the ground to be sold may be situated, stating the substance and object

of the said bill, and containing the names of the original lotholders or their

assignees if known, warning all the lotholders, whether they be residents or

non-residents, adults or infants to appear on or before a day fixed in such

order and show cause why the relief prayed should not be granted, and such

notice shall be published as the court may direct, not less however than once

a week for four successive weeks, two months before the day fixed by such

order for the appearance of the parties, and if such lotholders shall not appear

at the time stated in such notice a commission to take testimony may be

issued by the complainant ex parte. That after the return of such commission

the court, upon being satisfied from the testimony, that it is necessary and

would be for the interest and advantage of the parties interested that the

ground should be sold, may forthwith pass a decree for the sale of the same

upon such terms as it shall deem proper, and shall distribute the proceeds of

sale among the parties interested according to their several interests as the

same shall be shown to the court. That a decree passed in a proceeding for

the sale of a burial ground shall be valid to pass the title to the purchaser or

purchasers of the same or any part thereof free, clear and discharged of and

from the claims of the corporation or trustees who may hold the same for the

purposes aforesaid, their successors or assigns and of all persons an [sic]

interest as lotholders in such ground whether they are entitled as original

lotholders and whether they be residents or non-residents, adults or infants.

1868 Md. Laws 368-69, Ch. 211.

63

“private” sale of a burial ground that was “not made under ... the Act of 1868, ch. 211”

(i.e., the predecessor to BR § 5-505). The land at issue originally had been acquired by a

religious corporation “in fee, and without any declaration of use or trust whatever” and was

used as a burial ground in which lots were sold and certificates were issued. Id. at 517-18.

Because there was no language in the deed to the corporation creating a trust, a restrictive

covenant, or otherwise limiting the corporation’s use of the property, the corporation was

free to “abandon the use of the ground as a cemetery and to dispose of it.” 46 See id. at

517-18. To do so, the corporation paid back the lot holders who could be located and those

lot holders “re-interred their own dead elsewhere.” Id. at 518. The corporation re-interred

the remaining bodies itself in another cemetery and sold the burial ground without paying

back the lot holders connected to those remains and whose certificates, therefore, remained

“outstanding.” Id. The land was conveyed again, and eventually the new purchaser took

exception, complaining that “title [was] clouded and unmarketable” because the sale to him

“was not made under the Act of Assembly relating to the sale of burial grounds, and [the]

lot-holders would have the right to assert their claim against [him][.]” Id. at 516-17. That

46

The original conveyance to the religious corporation occurred in 1828. At that

time, under the Mortmain provision of the Maryland Declaration of Rights, the conveyance

presumably would have been deemed void unless the General Assembly had provided

express authorization, because the deed contained no restriction on using the property. See,

e.g., Trustees of Zion Church of City of Balt. v. Hilken, 84 Md. 170, 171-72 (1896). The

Rayner opinion did not discuss this (possibly because no party raised the issue), but

regardless, the religious corporation did not attempt to sell the land until 1867, Rayner, 60

Md. at 518, and by that time the religious corporation likely would have acquired title

anyway through adverse possession. See, e.g., Rydzewski v. Vestry of Grace and St. Peter’s

Church, 145 Md. 531, 535 (1924).

64

is, they might still enjoy “the right of burial” or could otherwise “defeat or qualify the

estate[.]” Id. at 518.

This Court rejected those arguments, reasoning that regardless of whether the

remaining lot holders might have some claim against the religious corporation for

abandoning the burial ground, their rights as to the land itself ceased once the religious

corporation abandoned the land (in compliance with its governing corporate documents)

and removed the bodies. Id. at 519-20. In reaching this conclusion, the Court made two

comments about BR § 5-505’s predecessor: the statute “furnished additional facilities for

parties interested in abandoned burial grounds to procure a sale of the same[,]” and “it in

no wise conflict[ed] with the established doctrine relating to rights of burial in the

cemeteries of religious bodies derived from certificates similar to that in the present case

and their liability to extinguishment[.]” Id. at 520.

These comments were consistent with this Court’s language in an earlier decision,

in which it likewise distinguished a sale of a burial ground under the statute from other

types of possible sales. See Partridge, 39 Md. at 639 (distinguishing the sale in the case

before it, which was made under “the Act,” and which therefore had required a showing

that a sale of the burial ground was “necessary,” from a hypothetical sale where the

“cemetery had been sold simply from motives of gain or convenience to the church

65

corporation” and suggesting that, in the latter type of sale, the lot holders might be able to

seek compensation for monuments placed on their burial lots).47

In another case decided around the same time, this Court considered an attempt to

invoke the predecessor to BR § 5-505, and it had occasion to discuss the effect of the

statute. See Reed v. Stouffer, 56 Md. 236, 248 (1881). Like Rayner, Reed involved land that

had been deeded to a religious society. But unlike Rayner, in Reed there were restrictions

in the chain of title. Specifically, the deed required, among other things, that the land “be

used as a burial ground or place of deposit for the remains of the members of the Society

of German Baptists” and “for no other use, intent or purpose whatever.” Id. At the time,

the original 1868 version of BR § 5-505 was still in effect, meaning that the court could

not issue a decree of sale unless it found that doing so was “necessary” and “would be for

the interest and advantage of the parties interested[.]” Id. at 251-52. This Court concluded

that “the proof [did] not come up to” the “necessary” standard because, among other things,

only two witnesses had testified in favor, and neither had stated that it was necessary to

sell the burial ground. Id. at 252-53. In the absence of a decree of sale issued under the

statute, this Court remarked that the restrictive language in the deed controlled, meaning

that the land could not be sold for another purpose. See id. at 253 (“The deed of 1808 in

express terms ... [conveys the property] for the particular purposes set forth ... and for no

47

Indeed, contrary to the Coalition’s argument that there is a general prohibition on

selling a burial ground without court approval, courts articulating the common law of burial

places outside of Maryland have also referenced sales and other conveyances of burial

grounds that have been made without court approval. See, e.g., Hines, 149 S.W. at 1059

(noting that “various conveyances” of land containing a burial ground had occurred).

66

other purpose, and the grantees by their acceptance of that deed, are bound by that

intention.”) (emphasis added). Accordingly, this Court reasoned that the land “must be held

and used in strict conformity to the terms of the deed by which it was conveyed, and for

the uses therein specially declared.” Id. at 254. And under traditional property law

principles, this meant that a violation of the terms of the deed would cause the land to revert

to the heirs of the grantor. See id. (“Should it be diverted from those uses, the terms of the

deed ... would be violated, and the heirs of [the grantor] would immediately become

re-invested with the title to the lot.”); see also Manning, 72 Md. at 128 (explaining that, in

Reed, “it was held that, inasmuch as the purposes for which the land was conveyed were

particularly set forth in that deed, the property could not be sold or applied to any other

use; and that any attempt ... would cause it to revert to the heirs of the original grantor”).

In Gump v. Sibley, 79 Md. 165 (1894), this Court again discussed the function of

the 1868 version of the statute, explaining that the statutory procedure removed restrictions

contained in the chain of title to burial ground land. In 1840, the trustees of St. John’s

Church had conveyed a lot to the Archbishop of Baltimore under a deed that incorporated

the requirements of an 1832 law, which allowed conveyances of land to the Archbishop

where the land was to be used only as a church lot, parsonage, or burial ground. Under the

law, if the land was not used for one or more of these purposes, the conveyance would be

void. See id. at 170-71. Later, a decree of sale for the lot under the original version of

BR § 5-505 was passed. This Court opined that “[t]he reasonable, just, and necessary

construction of the Act of 1868 is that … it enlarged the corporate powers granted to the

67

archbishop by the Act of 1832.” Id. at 171. That is, the decree issued under the predecessor

to BR § 5-505 “removed the restriction” that had been contained in the chain of title,

“put[ting] an end to the use for which the archbishop was authorized to hold the lot by the

terms of the Act of 1832” and therefore enabling the purchaser to take “good title to the

burial [land]” without a restriction on its use. Id. at 171-72.

A few years after this Court held in Reed that a decree of sale was not appropriate,

the General Assembly amended the predecessor statute to BR § 5-505, lowering the

applicable standard and removing the “necessary” language that had prevented the Reed

sale. The 1888 version of the statute was similar to the 1868 version, but among other

things, the 1888 revisions provided that a court could decree a sale if it found that it was

“desirable to dispose of [the] burial ground” and that doing so was “expedient or would be

to the interest and advantage of the parties[.]” 1888 Md. Laws 617-19, Ch. 369 (emphasis

added). However, the 1888 revisions also provided additional protections when the

procedure was used, helping to ensure proper treatment of the deceased and respect for the

feelings of the living: “other persons in interest” (who were not lot owners) were allowed

take part in proceedings, and the court was authorized to order that a portion of the sale

proceeds be set aside to purchase a new “place of sepulture” and to disinter and reinter the

remains of the dead.48

48

There are only a few substantive differences between the 1888 version of the

statute and BR § 5-505 today. Among other things, unlike BR § 5-505 today, the 1888

statute did not require the court to order funds to be set aside to pay for procuring a new

68

burial site and relocating any human remains, and it provided specific requirements for the

type of notice to be provided to interested persons. The operative text of the statute, as

amended in 1888, provided:

[I]n any case in which a burial ground has ceased to be used for burial

purposes, and the said ground has been dedicated and used for burial

purposes, and lots have been sold therein, and deeds executed or certificates

issued to purchasers thereof, and it shall be considered desirable to dispose

of said burial ground for other purposes, upon a bill being filed in any of the

circuit courts of the state, in equity, in the city or county in which said burial

ground is situated, setting forth the aforegoing facts, and containing the

names of the lot owners or their assignees so far as known, the court shall

order notice by publication in one or more newspapers published in the

county or city where such burial ground is situated, warning all the lot holders

or other persons in interest, residents or non-residents, adults or infants, to

appear in court on or before the day fixed in said notice, to show cause why

the relief prayed for should not be granted; and said notice shall be such as

the court may direct, not less, however, than once a week for four successive

weeks two months before the day fixed by such order for the appearance of

the parties; and upon a failure of appearance by any of said lot owners, or

any party in interest by the time limited in said notice, the court may order

testimony to be taken ex parte, according to the usual course in equity in

cases of default for non-appearance, and upon testimony taken in the cause

ex parte, or otherwise, if it is made to appear to the satisfaction of the court

that it is expedient or would be to the interest and advantage of the parties

concerned that the said burial ground should be sold, the court may forthwith

pass a decree for the sale of said ground upon such terms and notice as it

shall deem proper, and shall distribute the proceeds of sale among the parties

interested according to their several interests, as the same shall be shown to

the court; and before making said distribution the court may order and direct

that so much and such part of said proceeds of sale, as shall be necessary for

the purpose, shall be set aside and applied to the removal and burial of any

dead that may lie in said burial ground, in the purchase of a lot in any

cemetery, graveyard, or other appropriate place of sepulture, and in the

expense of disinterment and re-interment of said dead; and any decree passed

in a proceeding for a sale of a burial ground, as hereinbefore provided for,

shall be valid to pass to the purchaser or purchasers of said burial ground the

title of the same free, clear and discharged of, and from the claims of the

corporation or trustees who may hold the same, their successors or assigns,

69

The statute then remained unchanged for over a half-century, until it was revised

slightly in 1962. In this revision, the detailed procedural requirements about where to file

an action and how a court must provide notice of the action were removed. In their place,

the General Assembly provided that these procedural requirements would be specified in

the Maryland Rules: “an action for sale of said ground may be commenced in accordance

with the Maryland Rules.” 1962 Md. Laws 114, Ch. 36. The statute was not otherwise

changed.

To provide procedural requirements for actions under BR § 5-505 and its

predecessors, former rules J70-J73 were adopted. See Md. Rules J70-73 (1962), superseded

by Md. Rule 14-401 (1997). Today, those rules have been revised and combined into

Maryland Rule 14-401, which provides that an action under BR § 5-505 shall be brought

in any county in which a part of the burial ground at issue is located. Md. Rule 14-401(a).

The rule also sets out, among other things, the required contents of the complaint. 49 Md.

Rule 14-401(b).

and of all persons in interest as lot holders in such ground, whether they are

entitled as original lot holders, and whether they be residents or non-

residents, adults or infants.

1888 Md. Laws 617-19, Ch. 369.

49

It appears that the Standing Committee on Rules of Practice and Procedure (the

“Rules Committee”) has consistently viewed these rules as procedural in nature. In 1959 –

a few years before the 1962 revisions to the statute that removed certain procedural

requirements and referenced the Maryland Rules – the Rules Committee approved a report

“that there should be a rule to provide for the procedural aspects of Art. 16, § 119 (Sale of

70

Finally, in 1992, the statute was revised into its current form and codified in the

Business Regulation Article. The revisor’s note to the 1992 statute explains that the new

language was derived without substantive change from the former statute. 1992 Md. Laws

165, Ch. 4.50

This history and context support our interpretation that BR § 5-505 provides an

optional mechanism to sell certain burial grounds for other purposes. 51 This interpretation

Burial Grounds)” and directed the subcommittee chairman “to submit ... a draft of such a

rule.” Meeting Minutes, Standing Committee on Rules of Practice and Procedure, at 6 (Feb.

27, 1959). The rules became effective in 1962. See Md. Rules J70-73 (1962), superseded

by Md. Rule 14-401 (1997). Later, in 1984, the Chairman of the Property Subcommittee

“noted that the ... burial ground rules are essentially procedural in nature, unlike some of

the other special proceeding rules that cover substantive issues.” Meeting Minutes,

Standing Committee on Rules of Practice and Procedure, at 15, 65 (Sept. 14/15, 1984). The

timing of adopting the rules coincides with deleting the statutory procedural requirements.

The rules also cover much of the same content as the former statutory language. This

further suggests that the rules are procedural.

50

In 1992, the revised statute became BR § 5-501. The statute was renumbered as

§ 5-505 in 1997.

51

In a case decided after the 1992 revisions, we stated in dicta that, in BR § 5-505,

the General Assembly “has also provided for, and perhaps requires, a court judgment prior

to the sale of a burial ground.” Hickman ex rel. Hickman v. Carven, 366 Md. 362, 371

(2001). Although a court judgment under BR § 5-505 will sometimes be needed to sell

certain burial grounds, see, e.g., Gump, 79 Md. at 165 (decree of sale bypassed restrictions

in a deed and restrictions in the charter provided by the General Assembly), we disavow

the language in Hickman to the extent it suggests that the General Assembly may have

intended BR § 5-505 to set forth a general, mandatory procedure for selling a burial ground.

For one thing, not all burial grounds are subject to restrictions based on the chain of title.

In addition, the procedure in BR § 5-505 is not the exclusive means of removing

restrictions in a chain of title to land containing a burial ground. See Dumbarton, 434 Md.

at 62 (explaining that a restrictive covenant restricting “the use of the Development Parcel

for any purpose other than a cemetery” could be removed by showing that “the continuing

71

is not illogical or absurd. Legal ownership and use of many burial ground lands was

historically complex: lot holders and their heirs may have had certain rights to or interests

in the land,52 many large burial grounds had legal restrictions (of various forms and effect)

in their chains of title, and multiple ownership interests could be created with respect to the

same burial ground land – including possibilities of reverter or forfeiture that could be held

in the distant heirs of the original grantors. It makes sense that the General Assembly would

create a mechanism to bypass certain property law restrictions that cities had outgrown,53

validity of the covenant cannot further the purpose for which it was formed in light of

changed relevant circumstances[,]” but holding that such a showing was not made)

(cleaned up); see also RP §§ 6-101, 6-102 (establishing, in 1974, limits on certain

reversionary interests).

52

Although deeds and certificates to burial plots typically were held to grant only

licenses to make interments, courts have noted that this was not always the case, and that

sometimes these deeds and certificates could present difficult questions about ownership

interests in the land itself. See, e.g., In re Brick Presbyterian Church’s Pet., 3 Edw. Ch.

155, 164 (N.Y. Ch. 1837) (“The great question, with respect to these [deeds to vaults] is:

what rights do they confer? Do they confer a mere right of interment ... or is it a right to

the land – an estate or interest in the land itself ...? This is a question not entirely free from

difficulty.”). If a given deed or certificate created an interest in land, those interests could

also be terminated and compensated as part of a judgment under BR § 5-505 and its

predecessors. See Partridge, 39 Md. at 639 (noting that the predecessor to BR § 5-505

directs that sale proceeds be used to compensate “interest[s] in the land sold” and that “[t]he

most that the lot-holders [here] could claim to receive is the price paid by them for the

license. [But if] their interest was in the estate, then they would be entitled to distribution

according to that interest[.]”).

53

Indeed, the statutory language – originally allowing burial grounds to be sold “for

other purposes[,]” and later “for another purpose” – appears to closely track and respond

to common language in the conveyances of the time that restricted land use. Often, deeds

created land use restrictions by specifying the “purpose” to which land could be put and

stating that no other purposes were permitted. See, e.g., Sapper v. Mathers, 133 A. 565,

72

clear title to the land, and ultimately allow the land to be put to other uses. Thus, the

procedure within BR § 5-505 is historically significant, and it served an important function.

However, it was (and continues to be) an optional procedure to clear title and move remains

from a property that will no longer be used as a burial ground to another that will.54

565 (Pa. 1926) (deed “for no other purpose whatsoever than a cemetery or burial ground”);

Reed, 56 Md. at 248 (deed for “burial ground” and “for no other use, intent or purpose

whatever”); Herbert v. Pue, 72 Md. 307, 310 (1890) (deed reserving “grave-yard, but for

no other uses or purposes whatsoever”). In this context, a conveyance or sale for “other

purpose” or “another purpose” could refer to more than the subjective intent of the parties

about how the land would be used after it was sold; it may well refer to land use restrictions

for a limited “purpose” in the chain of title that were common in Maryland in the nineteenth

century, and to eliminating those restrictions so that the land may be conveyed in fee simple

and used for any purpose. See generally Reed, 56 Md. at 253 (noting that, absent a judgment

under the predecessor to BR § 5-505, a conveyance of land “for the particular purposes set

forth in the deed, and for no other purpose” meant that there was no right “to have the lot

in question sold” and “divert it from those uses”).

54

Our colleagues in dissent point to the views of twentieth and twenty-first century

policymakers and nongovernmental organizations, some of whom seem to understand

BR § 5-505 as requiring a party who wishes to sell a qualifying burial ground to first seek

court approval. See Dissenting Op. of Watts, J., at 19-22; Dissenting Op. of Hotten, J., at

17-18 n.9. We see no indication that these policymakers and organizations have considered

the history and context of BR § 5-505 that we have discussed here, including the

development of the common law of burial places. This observation in no way should be

construed as criticism. The common law of burial places has never been widely known,

and seems to have become even less well known over the course of the century-and-a-half

that BR § 5-505 and its predecessors have been in existence.

We also respectfully disagree with Justice Watts’s suggestion that the current

codification of BR § 5-505 in the “Cemeteries” title of the Business Regulation Article,

which includes a number of mandatory statutes, means that BR § 5-505 is also mandatory.

See Dissenting Op

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