Com., Dept. of Fish & Wildlife Resources v. Garner

• Decision Date: 23 March 1995
• Docket Number: No. 94-SC-567-DG,94-SC-567-DG
• Citation: Com., Dept. of Fish & Wildlife Resources v. Garner, 896 S.W.2d 10 (Ky. 1995)
• Court: Supreme Court of Kentucky
• Parties: COMMONWEALTH Of Kentucky, DEPARTMENT OF FISH & WILDLIFE RESOURCES, C. Thomas Bennett, Commissioner, and Fish & Wildlife Resources' Commission, David Godby, Chairman, Appellants v. Jacob Verl GARNER, Appellee.

Page 10

896 S.W.2d 10

COMMONWEALTH Of Kentucky, DEPARTMENT OF FISH & WILDLIFE RESOURCES, C. Thomas Bennett, Commissioner, and Fish & Wildlife Resources' Commission David Godby, Chairman, Appellants v. Jacob Verl GARNER, Appellee.

No. 94-SC-567-DG.

Supreme Court of Kentucky.

March 23, 1995.

Chris Gorman, Atty. Gen., Douglas Scott Porter, and Grant Winston, Asst. Attys. Gen., Frankfort, for appellants.

Charles C. Adams, Adams & Adams, Somerset, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which affirmed a decision of the circuit court giving a permanent injunction against the Department of Fish & Wildlife Resources, prohibiting it from erecting or reerecting a gate or other obstruction on land owned by the United States of America and of which the Department of Fish & Wildlife Resources is the licensee.

The questions presented are whether Garner has the right to permanently enjoin the Fish & Wildlife Commission from placing any gates on any of the subject roads in the wildlife management area; whether Fish & Wildlife was acting within its police power by installing gates in the area; whether a passway easement to a cemetery is an easement and whether gates across passways are permitted; and whether the United States of America is an indispensable party to this action.

The United States of America acquired title to approximately 89,734 acres of the Wolf Creek Dam and Lake Cumberland project in the 1950's. Under a 25-year agreement, which was most recently renewed in 1988, the Kentucky Department of Fish & Wildlife Resources is licensed by the United States to manage a fish and wildlife area known as "The Lake Cumberland Wildlife Management Area" on the property. The use of the land must be consistent with the rules and regulations for public use prescribed by the Secretary of the Army through the United States Army Corps of Engineers.

On July 18, 1988, the United States and Fish & Wildlife renewed a written license agreement for the area. At about that time, Fish & Wildlife began to erect a number of gates across a few roads in the area. The reason for the installation of the gates was to regain a measure of control and security over the area so as to reduce vandalism and dumping and to otherwise foster its wildlife program. Another reason was to restrict vehicular access to a limited portion of the area during certain times of the year. Three of the roads restricted by gates provided ingress to a small and old cemetery which occupied about three-quarters of an acre within the area. On occasion during the rainy season, some or all of the three roads were under water as a result of flooding. In 1992, Garner, whose great grandmother and cousin are among the dozen or so persons buried in the cemetery, destroyed the gates on the three roads. The locked gates blocked his access to the cemetery and were located on the exterior boundary line of the property. Fish & Wildlife immediately replaced the gates, and Garner, who testified that he had removed the gates on three earlier occasions, filed an action for declaratory and injunctive relief claiming the right of free ingress to and egress from the cemetery. The United States of America was never made a party to the action. The trial court ruled that the United States was not an indispensable party and that Garner was entitled to free access to the cemetery by motor vehicle and could not be required to open a gate or unlock a lock. Fish & Wildlife was permanently enjoined from erecting gates, fences or any other obstruction on any of the three roads in question. Fish & Wildlife appealed and the Court of Appeals affirmed the decision of the trial court. This Court granted discretionary review.

After the Court of Appeals dissolved the temporary injunction, the gate on Poynter Creek Road was moved from .9 of a mile from the cemetery to 50 to 75 feet from it. Fish & Wildlife built a parking area directly adjacent to the cemetery so that visitors could park within a few feet of the graveyard. Garner testified that he had visited the site six times between 1957 and the time the lawsuit began. The plot in question is known as Silvers Cemetery. Fish & Wildlife presented evidence that the gates were locked only from October through March 15 and were unlocked over the Memorial Day weekend. They also presented testimony that Garner was offered a key to unlock all of the gates. Fish & Wildlife presented evidence that the gates were up for three to five years until May, 1992, when Garner, with use of a tractor and other equipment, destroyed them.

The right of Garner to visit the cemetery must be balanced against the right of Fish & Wildlife to maintain reasonable security and prevent vandalism in the area because this case arises from a declaration of rights resulting from the granting of a permanent injunction.

This Court recognizes the unquestioned right of Garner to visit the grave of a relative. See 14 Am.Jur.2d 697 § 36 Cemeteries. * Under Kentucky law, the right of a relative to visit the graves of deceased relatives has been classified as an easement. Haas v. Gahlinger, Ky., 248 S.W.2d 349 (1952). The right of ingress and egress may be protected by an equity court. See Rose v. Rose, 314 Ky. 761, 237 S.W.2d 80 (1951). Whether the right of an heir to visit is considered an easement, license or privilege, it cannot be extinguished by the subservient fee owner through conveyance to another. Cf. Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496 (1941).

Ground v. Harmon, Ky., 291 S.W.2d 529 (1956), involved access to a family cemetery by more than one road. The court held that the defendant had access to the cemetery by means of a roadway that had been established by long usage, and there was no reason to grant him a right to ingress and egress over the plaintiff's land from the nearest road. Ground, supra, supports the position that the right to visit a family burial plot must be exercised reasonably. We are persuaded that Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911), provides a comprehensive description of the situation where relatives are granted the right of ingress and egress from the nearest public road with the right being exercised at reasonable times in a reasonable manner. See Mingledorff v. Crum, 388 So.2d 632 (Fla.App.1980).

The right of ingress and egress to a cemetery is to be used for a proper occasion and proper purposes. Hutchinson v. Akin, 5 Ky.Op. 373 (1871). The right of ingress and egress and its dimension is not unqualified. Rose, supra, held that the relatives had a right to use the graveyard for a proper purpose. We believe Stewart v. Compton, Ky.App., 549 S.W.2d 832 (1977) has been misinterpreted and misapplied in this situation. Stewart, supra, held that persons visiting a private cemetery should be able to do so at their own convenience and that to require them to resort to the use of keys would be unreasonable. The Court of Appeals distinguished the facts of Stewart from Wharton v. Cole, Ky., 453 S.W.2d 741 (1970), partly on the basis that the number of persons requiring keys could be readily ascertainable and that gate access could be quickly established. In Stewart, there was only one access road across which a gate was locked at all times, whereas in this case, there are three access roads and gates across them are not locked at all times, but for only six months of each year.

We must note that Fish & Wildlife has indicated in this proceeding that it will provide keys to Garner and his immediate family for the purpose of visitation and that the gates will remain open for six months of each year. Consequently, we believe little or no inconvenience would result from such an arrangement as distinguished from Stewart. Such a situation must be respected by both parties with the understanding that Garner and his family members may have absolutely free access to the cemetery area so long as they do not engage in any kind of vandalism or other inappropriate behavior. Fish & Wildlife and its agents and employees must not harass or make any access to the cemetery materially inconvenient. Acts of vandalism or misconduct by anyone are not immune from appropriate legal prosecution and punishment.

It must be understood that an easement or any other right of access for ingress or egress to a private cemetery is still governed by the common law principles of easements. The cemetery cases involving easements must be factually scrutinized very carefully and generally must be decided on a case-by-case basis....