Years ago, Quicey Morris’s father bought the family ranch near Amarillo from Jonathan and Mina Harker. Having not heard from either until last week, Quicey was surprised when Mina showed up with a small urn and an unusual request. Mina explained that Jonathan’s last wish was for his ashes to be buried at the tree he planted on the ranch- his happiest years were spent there. Are private cemeteries legal in Texas? How would an urn affect Morris and his family ranch?

Are Private Cemeteries Legal in Texas?

Yes. As with most Western states, private property burials were fairly common in Texas and are still legal here—if compliant with the Texas Health and Safety Code and any local rules and regulations. New Texas cemeteries are permitted if at least one to five miles from any municipal boundaries (depending upon population) and buried at a minimum depth. Interestingly, “six feet under” is not required. Beware: Digging a shallow grave is a misdemeanor. And, cemeteries need not be on specifically dedicated property; using the land for a single burial is enough.

Consequences of a Cemetery on Private Property

A single burial on private property invokes restrictions on the property owner’s rights. First, the property cannot be sold in a manner that would interfere with its use as a cemetery; “[b]urial lots, whether public or private, are not the subject of trade and commerce . . . .” Even though sold, the buyer must continue to permit the property to be used as a cemetery.

Second, the property owner may be prohibited from otherwise benign use of the property that may unintentionally disturb the graves. One Texas court enjoined a property owner from pasturing livestock or drilling oil wells on property dedicated as a cemetery, stating that “[t]hose who have loved ones buried there are entitled to have the hallowed spots protected from the headless search for hidden wealth and from the rapacious hands who would convert its sacred confines to a place of money getting.”

Third, the property owner loses the right to exclude people from property that has a “cemetery or private burial ground.” The general public gets access, not just the deceased’s family and friends. Those visiting the cemetery have the right to repair and beautify the graves and the surrounding grounds, including erecting headstones, markers, and other memorials. The property owner, however, can select the route to access the cemetery and may designate reasonable hours of visitation.

Fourth, the property owner may be required to permit further burials in the cemetery. Although no Texas case has decided the issue, one court has stated that “[t]he right of burial extends to all the descendants of the owners who devoted the property to burial purposes, and they may exercise it when necessity arises.”

Can a Private Property Cemetery be Removed?

Shakespeare’s tombstone famously states:

Good friend for Jesus sake forbeare,

To dig the dust enclosed here.

Blessed be the man that spares these stones,

And cursed be he that moves my bones.

The Texas Legislature, likewise, makes cemetery dedication removal difficult, pretty much only if:  (1) the cemetery is maintained, located, or used in violation of Texas law; (2) the cemetery is so neglected that is offensive to surrounding inhabitants making it a nuisance, (3) the cemetery is abandoned or unknown, or (4) all remains have been relocated. The cemetery becoming inconvenient or tiresome is not enough.

Texas law even prohibits disruption of the grave itself and moving the monuments around it. Even the property owner who knowingly damages or vandalizes a grave commits a crime in Texas.

Would Scattering Jonathan’s Ashes Avoid a Cemetery Designation?

Probably. The Health and Safety Code defines “cemetery” as “a place that is used or intended to be used for interment and includes a graveyard, burial park, mausoleum, or any other area containing one or more graves.” “Interment” means the act of putting the deceased into a grave or tomb or burying. Since scattering cremated remains does not involve a burial, the property on which the ashes are scattered is likely not a cemetery and, hence, not subject to the restrictions on its use. Moreover, the Health and Safety Code permits the scattering of cremated remains on private property, so long as the owner consents.

Titling the Scales in Your Favor

Carefully weigh the consequences of a private cemetery on your property, even though it’s legal. Your loss of many valuable property rights, including the right to exclude visitors, will undoubtedly affect your property’s resale value. If there’s already a cemetery, consider locating the access road to a route least intrusive to your property use, and consider building a fence around it or ask the claiming family to build it and to provide for its regular maintenance. If you’re buying a ranch, your due diligence should include investigating whether there are any graves tucked away in a remote corner. A purchaser takes subject to these restrictions whether known at purchase or not.