Background
The Maddoxes purchased a 14-acre Jackson County tract containing the Brumagen, Abrams, Hayes Cemetery, a private family graveyard with burials dating from at least 1912 through 2022. Their recorded deed stated that the conveyance was “subject to” the cemetery and its access road, both of which appeared on an attached survey plat.
After purchasing the property, the Maddoxes installed a locked gate and restricted access. Relatives of people buried there sued for unrestricted access, maintenance rights, and the ability to conduct future burials. The Jackson Circuit Court granted summary judgment to the Brumagens and permanently enjoined the Maddoxes from interfering with cemetery access, upkeep, gatherings, and future interments within the cemetery boundary.
The Court’s Holding
The Kentucky Court of Appeals affirmed. It held that Kentucky common law gives the family of a person who established a private family cemetery an easement that includes burial rights. Those rights do not depend solely on a written easement or adverse possession and are not extinguished merely because the surrounding land is later conveyed to another owner. The court distinguished Grinestaff v. Grinestaff, explaining that it concerned collateral relatives attempting to appropriate cemetery space and did not eliminate the burial rights of the establishing owner’s lineal descendants.
The court also concluded that the deed’s “subject to” language, coupled with the incorporated survey, qualified and limited the conveyance. The deed did not transfer rights permitting the Maddoxes to interfere with the Brumagens’ proper use of the cemetery and access road. The court did not decide who held fee title to the cemetery, because no quiet-title claim was before it.
Chief Judge Thompson dissented. He would have held that the “subject to” language preserved only relatives’ right to visit existing graves and did not authorize future burials without a public dedication, deed, contract, or the landowners’ permission.
Key Takeaways
- Under Kentucky common law, relatives may hold an easement in a private family cemetery that includes future interment rights, not merely access to existing graves.
- A later conveyance of the surrounding land does not extinguish established family-cemetery rights, even when no written easement expressly grants them.
- Deed language making a conveyance “subject to” a cemetery and access road, particularly when paired with an incorporated survey, can limit the property rights conveyed to the purchaser.
Why It Matters
The published decision clarifies that Kentucky’s common-law protections for private family cemeteries can encompass future burials by the establishing family’s descendants. Purchasers who take property with notice of an existing family cemetery may not treat the cemetery as ordinary land or prevent its use for proper cemetery purposes.
The opinion also limits the reach of its property-title analysis: it upheld the injunction because the Maddoxes acquired no right to interfere with cemetery use, but it did not determine ownership of the fee underlying the cemetery.