Housing Opportunities Commission of Montgomery County v. Olusegun Adebayo, et al.,
No. 1488, September Term 2021. Opinion by Arthur, J.
BUSINESS REGULATION—SALE OF BURIAL GROUND FOR ANOTHER
PURPOSE
Maryland Code (1992, 2015 Repl. Vol.), § 5-505 of the Business Regulation Article
(“BR”) establishes a procedure through which a person may obtain court approval of the
sale of certain types of burial grounds “for another purpose,” free and clear of the claims
of the owner of the burial ground and the holders of burial lots. This provision operates
as a quiet-title statute. If the proponent of a sale does not employ BR § 5-505, a sale can
still occur, but the purchaser will take the property subject to the claims of the lot holders.
In this case, the prospective seller of a property that contained a burial ground was not
required to seek court approval under BR § 5-505 before selling the property. The
consequence of the failure to employ the statute is that the purchaser would take the
property subject to the claims of the lot holders.
MOOTNESS—EXCEPTION FOR ISSUES CAPABLE OF REPETITION YET
EVADING REVIEW
This action to enjoin the sale of a property and to compel the seller to obtain court
approval for the sale became moot when the purchaser terminated the sale agreement.
Once the purchaser withdrew from the agreement, there was no longer a sale for the court
to enjoin; nor was there a sale to submit for court approval.
Even though the appeal was moot, the court could decide the appeal under the exception
for cases presenting recurring matters of public concern which, unless decided, will
continue to evade review. The issue here was likely to recur; was likely to evade review;
involved a relationship between government and its citizens, or a duty of government;
and the public interest would be harmed if the court did not decide the issue.
STANDING—ACTION CHALLENGING SALE OF BURIAL GROUND
Individual plaintiffs had standing to bring action to compel seller to seek court approval
for the sale of a burial ground. The plaintiffs were “person[s] in interest” to an action for
court approval of the sale, as long as the plaintiffs were related by blood or marriage to
persons buried in the cemetery. To establish standing, the plaintiffs were not required to
produce certificates or deeds for the burial lots. The plaintiffs produced sufficient
evidence showing a likelihood that their ancestors still were interred in the property.
Circuit Court for Montgomery County
Case No. 486734V
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1488
September Term, 2021
______________________________________
HOUSING OPPORTUNITIES COMMISSION OF
MONTGOMERY COUNTY
v.
OLUSEGUN ADEBAYO, ET AL.
______________________________________
Berger,
Arthur,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.**
______________________________________
Opinion by Arthur, J.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this Filed: June 28, 2023
document is authentic.
2023-06-28 10:35-04:00
**Tang, J., and Albright, J., did not participate in
the Court’s decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.
Gregory Hilton, Clerk
*At the November 8, 2022, general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of
Maryland to the Appellate Court of Maryland. The name change took effect on
December 14, 2022.
This is an emotional case about a dry and technical statute: section 5-505 of the
Business Regulation Article (“BR”) of the Maryland Code (1992, 2015 Repl. Vol.).
Section 5-505 provides, in full, as follows:
(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.
(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.
In essence, BR § 5-505 is a quiet-title statute: it creates a mechanism by which a
person may obtain court approval to sell certain types of burial grounds “for another
purpose,” free of the claims of the owner of the burial ground and the holders of the
burial lots. An action under BR § 5-505 is usually brought by the owner of the burial
ground,1 but it apparently can be brought by others as well, because the statute empowers
the court to enter a judgment that passes the ground to the buyer free of the owner’s
claims. The statute does not apply to the sale of all burial grounds, but only to those for
which burial lots have been sold and deeds executed or certificates issued to buyers of the
lots.2 The statute applies in every jurisdiction in the State, except for Baltimore City,
which has its own, similar statute concerning the sale of certain burial grounds for
another purpose: BR § 5-506.
The burial ground in this case lies on what is variously referred to as parcel 175 or
lot 175 in Bethesda. Since the late 1960s, the parcel or lot in question has been paved
over and used as the parking lot of Westwood Tower, a 212-unit apartment building.
In 2018, Westwood Tower was acquired by the Housing Opportunities
Commission of Montgomery County (“HOC”), the appellant in this Court and the
defendant below. HOC describes itself as a quasi-governmental organization that
provides housing for low- and moderate-income families in Montgomery County.
1
See, e.g., Reed v. Stouffer, 56 Md. 236 (1881); Partridge v. First Indep. Church,
39 Md. 631 (1874).
2
Thus, the statute would probably not apply to the sale of family cemeteries or
private cemeteries associated with convents, monasteries, prisons, orphanages, or other
similar institutions, or a potter’s field.
2
The appellees in this Court (the plaintiffs below) are the Reverend Olusegun
Adebayo, the pastor and spiritual leader of Macedonia Baptist Church, which is directly
across the street from the burial ground; the Bethesda African American Cemetery
Coalition, a non-profit organization whose mission is to stop the desecration of the burial
ground and to ensure that it is properly memorialized and treated with dignity; and three
persons whose ancestors were interred in the burial ground—Darold Cuba, Geneva
Nanette Hunter, and Montani Wallace. We shall refer to the appellees, collectively, as
the “Coalition,” except when referring to one or more of them individually.
In 2021, the Coalition filed suit against HOC in the Circuit Court for Montgomery
County. In that suit, the Coalition sought a preliminary injunction to halt the sale of the
burial ground to a third-party developer. The Coalition also sought a writ of mandamus
to compel HOC to seek court approval under BR § 5-505 before it sold or offered to sell
the property to a third party. The central issue before the court was whether BR § 5-505
required HOC to obtain court approval for the sale.
The circuit court granted a preliminary injunction prohibiting HOC from
proceeding with the contemplated sale of the property pending a decision on the request
for a writ of mandamus. Later, the court issued a writ of mandamus requiring HOC to
“comply with [BR § 5-505] prior to selling Westwood Tower Apartments and parcel
175.” HOC appealed.
For the reasons detailed below, we shall reverse the judgment. BR § 5-505
establishes a process by which a person may obtain a court order that allows for the sale
of a specific type of burial ground free and clear of certain claims, including those of the
3
lot holders and those claiming under them. If a person fails to pursue that process, the
property may still be sold, but it remains subject to the claims that a judgment under BR §
5-505 would have extinguished.
FACTUAL AND PROCEDURAL BACKGROUND
In 1910, a community cemetery, called “Moses African Cemetery,” was formed
on a hill in Bethesda. The cemetery included what is now known as parcel 175.
In 1911, White’s Tabernacle No. 39, a fraternal society that supported the African
American community near Fort Reno in the District of Columbia, purchased lots 175 and
177. Pursuant to an Act of Congress, the remains of as many as 192 persons were
removed from a burial site in Tenleytown in the District of Columbia and reinterred at the
Moses Cemetery. The remains of others were interred at the cemetery in the ensuing
decades. The last burial reportedly occurred in the 1940s.
Harvey Mathews, a Black man who grew up 200 yards from the cemetery, played
in the cemetery as a child because the public parks were off limits then to Black people.
He recalled that the cemetery contained at least 200 graves.
In 1958, the representatives of White’s Tabernacle No. 39 sold parcel 175 to one
Leo Furr. The tax records accompanying that sale state that the land was “used as a
burial ground.”3
3
The records pertaining to the sale do not appear to be part of the record.
Consequently, it is unclear how much the representatives of White’s Tabernacle No. 39
received for the property or what they did with the sale proceeds. There is, however, no
evidence that they or the purchaser invoked the procedures under BR § 5-505’s statutory
predecessor and sought court approval for the sale of a burial ground for another purpose.
4
The Westwood Tower apartment building was constructed between 1966 and
1968. The developer was reported to have believed that paving the cemetery “was the
best way to keep any human remains in place.” He is said to have directed that the
drainage be designed so that erosion would not uncover human remains.4
In about 1969, a portion of parcel 175 was bulldozed for the construction of a
parking lot. Mr. Mathews recalled that the construction workers pushed grave markers
into a creek and that they would sometimes uncover human body parts, which they
removed to another location. Although Maryland law required5 (and still requires)6 a
person to obtain permission from the State’s Attorney before removing human remains
from a burial site, the record contains nothing to suggest that anyone obtained such
permission at that time.
HOC began to lease the Westwood Tower property in 1997. The lease gave HOC
the option to acquire the property.
In 2013, an entity known as Equity One acquired Westwood Tower. In
August of 2016, Equity One submitted a preliminary application to redevelop the
property (a “sketch plan application”) to the Montgomery County Planning Department.
4
The assertions about the developer’s beliefs and statements involve multiple
levels of hearsay. At the trial in this case, they were admitted not for the truth of the
matters asserted, but as facts or data on which an expert in a particular field—here, an
archeologist—would reasonably rely in rendering an opinion. See Md. Rule 5-703(a).
5
Maryland Code (1957), art. 27, § 265.
6
Maryland Code (2002, 2021 Repl. Vol.), § 10-402 of the Criminal Law Article.
5
As a result of a public outcry about the potential existence of a cemetery on the
property, Equity One and the Montgomery County Planning Department commissioned
and funded a historical and archeological study of the cemetery site. The study, which is
dated July 21, 2017, concluded that the property had been used as a burial ground for
many years.
Meanwhile, an entity known as Regency Centers acquired all of Equity One’s
holdings, including Westwood Tower. In 2018, HOC exercised its option to acquire
Westwood Tower, including parcel 175, from Regency Centers. HOC paid $20 million.
On July 12, 2021, HOC entered into a contract to sell Westwood Tower, including
parcel 175, for more than $51 million, to Charger Ventures Bethesda LLC. The contract
required Charger to make millions of dollars of capital improvements to the property and
to set aside 30 percent of the units for low- and moderate-income families for 99 years.
The contract also contained the following provision:
After Closing, Purchaser shall use its commercially reasonable efforts and
shall work in good faith to memorialize the historical significance of the
land formerly owned by White’s Tabernacle No. 39 (which is sometimes
referred to as Moses Cemetery on River Road, River Road Cemetery, or
Moses Cemetery), located on or below a portion of the Real Property.
On August 10, 2021, the Coalition filed this suit against HOC. In a one-count
complaint, the Coalition asked the court to issue a writ of mandamus “compelling” HOC
6
to file an action pursuant to BR § 5-505 “before selling or offering for sale Parcel 175 for
the purpose of using or developing it for a non-burial ground use.”7
On September 1, 2021, the Coalition moved for a temporary restraining order and
preliminary injunction to prevent HOC from completing the sale to Charger until the
court had decided the merits of the case. The court granted a temporary restraining order
and scheduled a hearing on the motion for a preliminary injunction.
On September 7, 2021, HOC moved to dismiss the complaint. In its motion, HOC
principally argued that BR § 5-505 did not impose a mandatory duty of the sort that a
court could enforce by a writ of mandamus. HOC also argued that the property was not
being sold “for another purpose” within the meaning of BR § 5-505, because it would
continue to be used as an apartment building and parking lot. In addition, HOC argued
that none of the plaintiffs had standing and that the Coalition had failed to plead that the
property contained a burial site.
7
“[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 the party applying for the writ has a clear
legal right.’” Falls Rd. Cmty. Ass’n, Inc. v. Baltimore County, 437 Md. 115, 139 (2014).
It is questionable whether mandamus is an appropriate remedy in this case, as the alleged
duty to be compelled—the duty to seek court approval for the sale of a burial ground in
accordance with BR § 5-505—is not one that is imposed upon HOC in its capacity as a
governmental or quasi-governmental entity. Rather, the duty to be compelled is one that
is allegedly imposed upon anyone who sells a certain kind of burial ground for another
purpose, regardless of whether they are or are not a governmental entity. Nonetheless, as
HOC did not raise this issue, we do not consider it.
7
In response to the motion to dismiss, the Coalition relied on Md. Rule 14-401(b),
which dictates the procedure for commencing an action for court approval of a burial
ground for another purpose under BR § 5-505. Rule 14-401(b) begins by stating that
“[t]he action for sale of a burial ground shall be commenced by filing a complaint that, in
addition to complying with Rules 2-303 through 2-305” and goes on to dictate what the
complaint “shall contain.” Seizing on the words “[t]he action for sale of a burial ground
shall be commenced” (emphasis added), the Coalition argued that BR § 5-505 imposes a
mandatory obligation.8 Additionally, the Coalition cited dicta from Hickman ex rel.
Hickman v. Carven, 362 Md. 362, 371 (2001), in which the Court wrote, among other
things, that through BR § 5-505(a), the General Assembly “has . . . provided for, and
perhaps requires, a court judgment prior to the sale of a burial ground.”
The Coalition went on to argue that it had adequately alleged that the property
contained a burial ground. Among other things, the Coalition cited the statements in
which HOC itself had acknowledged the existence of a burial ground on the Westwood
Tower property.
8
The Coalition has wisely abandoned that argument on appeal. Rule 14-401(b),
read properly, does not require someone to commence an action for the sale of a burial
ground. Rather, it dictates the manner by which such an action must be brought (i.e., by
filing a complaint that complies with Rules 2-303 through 2-305 and that contains other,
specific information).
8
Finally, the Coalition argued that all of the plaintiffs had standing because they
were “persons in interest” who were entitled to notice of an action to sell a burial ground
for another purpose under Rule 14-401(c).9
A week later, Charger moved to intervene as of right under Md. Rule 2-214(a),
which states that, “[u]pon timely motion, a person shall be permitted to intervene in an
action as . . . (2) when the person claims an interest relating to the property or transaction
that is the subject of the action, and the person is so situated that the disposition of the
action may as a practical matter impair or impede the ability to protect that interest unless
it is adequately represented by existing parties.” Just before the hearing on the motion for
a preliminary injunction on September 27, 2021, the court denied Charger’s motion to
intervene. Consequently, Charger was unable to participate in the hearing to determine
whether HOC should be enjoined from selling the property that Charger had contracted to
purchase.10
9
Rule 14-401(c) states that, in an action to sell a burial ground for another
purpose, the clerk of the circuit court must inform “all lot owners or other persons in
interest of the latest date by which a response may be filed.” Section 14-121(a)(4) of the
Real Property Article of the Maryland Code (1974, 2015 Repl. Vol.) defines the
“[p]erson[s] in interest” who have access to burial sites to include persons who are
“related by blood or marriage to the person interred in a burial site” and persons who
have “a cultural affiliation with the person interred in a burial site[.]”
10
In denying Charger’s motion to intervene, the court reasoned that Charger had
“failed to demonstrate” that it had a “distinct interest” that was “not represented or
advocated to any degree by HOC,” or that “HOC and Charger have interests . . . that are
adverse to one another.” Yet, even when an intervenor’s interests are aligned with those
of an existing party, as Charger’s were with HOC’s, the two parties may not “necessarily
have the same ultimate objective.” Stewart v. Tuli, 82 Md. App. 726, 731 (1990). “[I]f
the movant’s interest is similar but not identical to that of the existing party, a
9
The court proceeded to hear argument on HOC’s motion to dismiss and heard
many hours of evidence on the Coalition’s motion for a preliminary injunction. In
addition to the evidence detailed above, the court heard from Lyle Torp, an archeologist
whom the court accepted as an expert in the identification, evaluation, and study of
historical cemeteries. Mr. Torp testified that there is “no doubt” that a cemetery is
located on the Westwood Tower property. In Mr. Torp’s expert opinion, it is “highly
unlikely” that all of the bodies buried at the Moses Cemetery were removed as a result of
the earth-moving activities on the site.
Similarly, the court heard that the chairman of HOC has acknowledged that the
property contains an “African-American cemetery referred to as White [sic] Tabernacle
No. 39, Moses Cemetery.” The court also heard that a senior official in the Montgomery
County Planning Department has stated the cemetery extends over two parcels, parcels
175 and 177, but that “[m]ost of the remains were probably buried on Parcel 175,” which
is “now a paved parking lot for Westwood Tower Apartments.” Finally, the court heard
discriminating judgment is required on the circumstances of the particular case, but the
movant ordinarily should be allowed to intervene unless it is clear that the party having a
similar interest will provide adequate representation.” Id. at 732. Moreover, “the burden
of showing that existing representation may be inadequate is a minimal one.” Id. In this
case, Charger’s objectives were quite different from HOC’s, because Charger was
purchasing the property in a “like-kind exchange” under § 1031 of the Internal Revenue
Code, and thus its members faced the prospect of adverse tax consequences unless the
purchase was completed within a strict and inflexible deadline. HOC, by contrast, had
the option to look for other purchasers if Charger backed out of the deal when the
deadline could not be met (as Charger ultimately did). It bears mention that, as the
contract purchaser in a sale that the Coalition was trying to enjoin and subject to court
approval, Charger was arguably a necessary party that had to be joined. See Md. Rule 2-
211(a).
10
that, in its agreement with Charger, HOC had acknowledged that a cemetery “was located
on or below a portion of” the property that it had agreed to convey.
On October 27, 2021, the court denied HOC’s motion to dismiss. On the same
day, the court granted the Coalition’s motion for a preliminary injunction and enjoined
HOC from proceeding with the sale until the court had decided whether to grant or deny a
writ of mandamus.
In both decisions, the court rejected all of HOC’s arguments, including its
principal argument, that BR § 5-505 does not require court approval for the sale of the
burial site under parcel 175. The court relied prominently on a legal encyclopedia for the
proposition that: “[W]hen a tract of land has been dedicated as a cemetery, it is
perpetually devoted to the burial of the dead and may not be appropriated to any other
purpose, at least in the absence of any authorized exercise of the power of eminent
domain.” (Footnote omitted.) The court also relied on the dicta in Hickman v. Carven,
366 Md. at 371, to the effect that BR § 5-505 “perhaps requires [] a court judgment prior
to the sale of a burial ground.”
On November 4, 2021, HOC asked the court to enter a final order granting the writ
of mandamus. HOC explained that, in ruling that BR § 5-505 requires HOC to seek court
approval for the sale of the burial site, the court had effectively decided that the Coalition
was entitled to a writ of mandamus.
While the parties had been awaiting a decision on the motion for a preliminary
injunction, Charger renewed its request to intervene. On November 19, 2021, however,
Charger withdrew that motion. Charger explained that the preliminary injunction had
11
“prevented it from timely acquiring the property at issue.” “[A]s a result,” Charger said,
it had “exercised its right to terminate the purchase and sale and agreement,” and thus “no
longer ha[d] any contractual rights relating to property.” No one, including the court
itself, appears to have questioned whether the case had become moot now that there was
no longer a sale to enjoin or subject to court approval.
On November 29, 2021, the court proceeded to enter a final order stating that
HOC must comply with BR § 5-505 “prior to selling Westwood Tower Apartments and
parcel 175.” HOC noted a timely appeal from that order.11
QUESTIONS PRESENTED
HOC presents three questions, which we have reordered and rephrased in the
interest of concision:
1. Did the circuit court err in concluding that the Coalition and the
individual appellees have standing?
2. Did the circuit court err in concluding that, under BR § 5-505, HOC was
required to seek court approval for the sale of parcel 175?
3. Did the circuit court err or abuse its discretion in concluding that the
Coalition was entitled to a writ of mandamus ordering HOC to comply
with BR § 5-505 before selling parcel 175?12
11
HOC had previously filed a timely interlocutory appeal from the order granting
the preliminary injunction. This Court combined both appeals into the same case.
12
HOC phrased its questions as follows:
1. Whether the Circuit Court erred in deciding a question of law when it
failed to construe Md. Code Ann., Bus. Reg. § 5-505 consistent with its
plain and unambiguous meaning, when it held that the statute must
apply to a sale of property once used for burial purposes sixty years ago
before being destroyed, paved over for residential parking use, and
12
Before we reach the merits, we must address questions that neither party raised.
First, is the case moot because there is no longer a sale to enjoin or subject to court
approval? Second, if the case is moot, are we nonetheless entitled to decide it under an
exception to the general rule that courts should not decide moot cases? We conclude that
the case is moot, but that we may decide it under the exception for cases that “‘present[] a
recurring matter of public concern which, unless decided, will continue to evade
subsequently sold three times for continued non-burial use without
challenge; where the prospective sale would result in maintained non-
burial use with no evidence of interference to subterranean land; and
where it is unknown whether bodies remain interred underneath the
property.
2. Whether the Circuit Court erred when it held that Appellees have
standing—that is individual Appellees are “persons of interest”, as
defined by Md. Code Ann., Real Prop. § 14-121(a)(3)-(4), by claiming
either a cultural affiliation with, or relatives by blood or marriage of
persons interred under the portion of parcel 175 owned by the Housing
Opportunities Commission of Montgomery County (hereinafter “HOC”)
by referencing documentation that makes no mention of the parcel; that
Appellee, Bethesda African Cemetery Coalition (“BACC”), established
an organizational property interest separate and distinct from that of its
individual members; and that Appellees would suffer a special kind of
damage as a result of HOC’s sale.
3. Whether the Circuit Court erred in deciding a question of law
establishing that Appellees are clearly entitled to the drastic and
extraordinary remedy of a writ of mandamus to order a quasi-
governmental affordable housing agency to comply with a discretionary
statute, despite any alleged rights to participate in a Md. Code Ann.,
Bus. Reg § 5-505 action requiring predicate and discretionary actions by
a complainant and the Court and Appellees have other recourse
available.
13
review[.]’” La Valle v. La Valle, 432 Md. 343, 352 (2013) (quoting Off. of the Pub. Def.
v. State, 413 Md. 411, 423 (2010)).
On the merits, we conclude that at least three of the individual plaintiffs have
standing, but that BR § 5-505 does not require HOC to seek and obtain court approval for
the sale of parcel 175. HOC can sell the property without obtaining court approval, but
the property will remain subject to the claims of the lot holders.
In view of our interpretation of BR § 5-505, we need not consider HOC’s third
question, concerning the Coalition’s entitlement to a writ of mandamus.
ANALYSIS
I. Mootness
On November 21, 2021, after the court had denied its motion to intervene,
Charger, the prospective purchaser, informed the court that it had “exercised its right to
terminate the purchase and sale and agreement,” and thus “no longer has any contractual
rights relating to property.” Because this is a case to enjoin a sale and to require the
seller to obtain court approval for the sale, it would certainly seem that the case became
moot once Charger had terminated the “purchase and sale and agreement.”
None of the parties raised the issue of mootness (or even mentioned the buyer’s
termination of the agreement) in their briefs. Consequently, we ordered the submission
of additional briefing on whether the case is moot and, if so, whether this Court should
decide the merits under an exception to the general principle that courts should not decide
moot cases. See State v. Ficker, 266 Md. 500, 506-07 (1972) (stating that “[a]ppellate
courts do not sit to give opinions on abstract propositions or moot questions, and appeals
14
which present nothing else for decision are dismissed as a matter of course”); accord
Cottman v. State, 395 Md. 729, 744 (2006).13
“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. Shepherd Pratt Health
Sys., Inc., 465 Md. 339, 351-52 (2019) (quoting In re Kaela C., 394 Md. 432, 452
(2006)). Both parties deny that the case is moot.
HOC argues that the circuit court’s decision limits the marketability of its
property. Its argument fails to recognize that we would vacate that decision and order
that the complaint be dismissed if we determined that the case is moot. See, e.g.,
Stevenson v. Lanham, 127 Md. App. 597, 626-27 (1999).
The Coalition argues that the case is not moot because, it says, its mandamus
action was “never specific to Charger.”14 It asserts that HOC intends to sell the property
to someone. Thus, it argues that it is entitled to a writ of mandamus requiring HOC to
obtain court approval for the sale of the property even if HOC does not currently have a
prospective purchaser.
We disagree with the Coalition’s contention that the case is not moot. There was a
live controversy for the circuit court to decide only as long as HOC had a viable prospect
of selling the property to a third party, like Charger. Once Charger withdrew from the
13
We also asked the parties to address whether Charger was a necessary party and
whether a hypothetical future purchaser would be a necessary party in a future action to
require HOC to obtain court approval for the sale of the property.
14
As to whether mandamus would be a proper remedy in this case, see n.7, above.
15
deal, there was no longer a sale for the court to enjoin; nor was there a sale to submit for
court approval.
The Coalition argues that the case is not moot because a similar controversy
might, or even will, occur again. We disagree. In the leading case of Lloyd v. Board of
Supervisors of Elections of Baltimore County, 206 Md. 36, 43-44 (1954), the Court held
that a mandamus-based challenge to certain ballot requirements became moot once the
election had occurred, even though another election was virtually certain to occur only a
few years hence. If the issue arose again, the Court explained, there would be “no
difficulty in having it passed upon by this Court as a live issue.” Id. at 44.
Yet, even if the case is moot, an appellate court may still proceed to decide the
case if the following conditions are met:
1. the public interest clearly will be hurt if the question is not immediately
decided,
2. the matter is likely to recur frequently,
3. its recurrence will involve a relationship between government and its
citizens, or a duty of government, and
4. upon any recurrence, the same difficulty which prevented the appeal at
hand from being heard in time is likely again to prevent a decision.
Lloyd v. Bd. of Supervisors of Elections of Baltimore Cnty., 206 Md. at 43; accord Reyes
v. Prince George’s County, 281 Md. 279, 300 n.18 (1977).
The issue in this case undoubtedly will recur. HOC makes no secret of its
intention to sell the property, if only to ensure that the buyer will make the necessary
16
capital improvements and that the millions of dollars in sale proceeds can be used to
expand and preserve affordable housing in Montgomery County.
The issue is also likely to evade review. As HOC argues, “it is not reasonable to
expect a prospective purchaser to be able and willing to hold its plans and earmark a
significant amount of money for an indefinite time while this matter is decided.” And as
the Coalition argues, “one can imagine a continuous loop of these occurrences, where the
case always becomes moot on appeal because prospective purchasers do not want to ‘sit
on their contracts’ (at the mercy of market fluctuations) and wait for the mandamus
action (and appeals) to play out.”
Because HOC is a quasi-governmental entity, the recurrence of the issue will
certainly “involve a relationship between government and its citizens, or a duty of
government[.]” Lloyd v. Bd. of Supervisors of Elections of Baltimore Cnty., 206 Md. at
43.
Finally, the public interest will, in our judgment, clearly be hurt if we refrain from
deciding the issue. The Moses Cemetery has properly been a subject of enormous public
concern for years. In 2016, a previous owner was forced to halt its plans to redevelop the
property because of the public outcry about the potential existence of a cemetery on the
property. The County Planning Department interjected itself into that controversy and, in
conjunction with the owner, commissioned the archeological study that confirmed the
existence of the cemetery. In the wake of the controversy about the Moses Cemetery, the
Montgomery County Council has passed legislation that “requires the Planning Board to
maintain an inventory of human burial sites in the county” and “requires these sites to be
17
preserved and protected during the preliminary plan of subdivision review and approval
process.”15 According to the circuit court, Montgomery County has sponsored efforts to
mediate a resolution of this dispute. The Coalition and the individual plaintiffs have
pressing concerns about the ongoing desecration of this cemetery and the obliteration of
African American history. And HOC has concerns of its own about its ability to
discharge its obligation to provide, expand, and preserve affordable housing in a
jurisdiction in which affordable housing is scarce.
For these reasons, we shall decide the merits of the case even though it is moot.
II. Standing
In the circuit court, HOC contended that the Coalition and the individual plaintiffs
lacked standing to bring this action. The circuit court disagreed, reasoning that they were
“persons of interest” who would be entitled to notice of an action for court approval of
the sale of a burial ground for another purpose. HOC challenges that ruling on appeal.
In rejecting HOC’s argument on standing, the circuit court relied on Rule 14-401,
the procedural rule that implements BR § 5-505. Rule 14-401(c) states that, upon the
filing of a complaint for the sale of a burial ground for another purpose, the clerk must
issue a notice (rather than a summons). The notice must, among other things, “inform all
lot owners or other persons in interest of the latest date by which a response may be
15
https://perma.cc/F9NZ-MT2F. Bill No. 24-17 amended § 33A-17 of the
Montgomery County Code to require the Planning Board to maintain the inventory of
burial sites. Ordinance No. 18-31 amended several provisions of Chapter 50 of the
Montgomery County Code to insert protections for those burial sites during the process
of obtaining approval for the development of land.
18
filed.” The notice is not served on the “lot owners or other persons in interest,” but must
be published as provided in Rule 2-122, the rule regarding service by posting or
publication in an in rem or quasi in rem proceeding.16
Rule 14-401(c) does not define the “persons in interest” who are entitled to notice.
But in a statute on the related topic of access to burial sites, the General Assembly has
defined the term “person in interest” as someone who:
(i) Is related by blood or marriage to the person interred in a burial site;
(ii) Is a domestic partner, as defined in § 1-101 of the Health-General
Article, of a person interred in a burial site;
(iii) Has a cultural affiliation with the person interred in a burial site; or
(iv) Has an interest in a burial site that the Office of the State’s Attorney for
the county where the burial site is located recognizes is in the public
interest after consultation with a local burial sites advisory board or, if
such a board does not exist, the Maryland Historical Trust.
Maryland Code (1974, 2015 Repl. Vol.) § 14-121(a)(4) of the Real Property (“RP”)
Article.
Three of the individual plaintiffs—Ms. Hunter, Mr. Cuba, and Ms. Wallace—
claim to be related by blood or marriage to persons who were buried in the Moses
Cemetery. Therefore, they are undeniably “persons in interest” under RP § 14-121(a)(4).
HOC does not contend that the circuit court erred in using the definition of
“person in interest” in RP § 14-121 to interpret the meaning of the term “persons in
interest” in Rule 14-401(c). In other words, HOC does not dispute that if someone is a
16
The notice must also be “posted in a conspicuous place on the property and at
all principal gates or entrances to the burial ground.” Md. Rule 14-401(c).
19
“person in interest” under RP § 14-121, they are also a “person in interest” under Rule
14-401(c). Instead, HOC argues that Ms. Hunter, Mr. Cuba, and Ms. Wallace have not
provided certificates or deeds that show that their ancestors were buried in parcel 175 (as
opposed to the neighboring parcel 177, which HOC does not own). Additionally, HOC
seems to argue that Ms. Hunter, Mr. Cuba, and Ms. Wallace cannot prove that their
ancestors are still interred on parcel 175, as the evidence showed that some of the human
remains on the site were removed (illegally, it appears) during the construction of
Westwood Tower or the paving of the parking lot.
HOC’s arguments do not establish that Ms. Hunter, Mr. Cuba, or Ms. Wallace lack
standing.
In arguing that Ms. Hunter, Mr. Cuba, and Ms. Wallace must produce certificates
or deeds to establish their standing, HOC relies on McDonough v. Roland Park Co., 189
Md. 659 (1948). McDonough is inapposite. It concerns the proof that is required to
establish the existence and location of a cemetery (in that case, a private family cemetery
on what once was farmland). Id. at 665-66. In this case, however, there is no question
that there is a cemetery beneath parcel 175. The court found that there is a cemetery
beneath the parcel; and HOC has not only failed to challenge that finding, but it has
admitted elsewhere that there is a cemetery on the site. The failure to produce deeds or
certificates has no bearing on whether Ms. Hunter, Mr. Cuba, and Ms. Wallace have
20
standing as persons related by blood or marriage to someone who was or may have been
interred in parcel 175.17
Furthermore, the evidence was sufficient to establish that the ancestors of Ms.
Hunter, Mr. Cuba, or Ms. Wallace are probably still interred in parcel 175. The evidence
showed that most of the remains—200 bodies or more—were interred on parcel 175.
The record contains nothing to suggest that all, most, or even many of those bodies were
disinterred and removed. To the contrary, the record reflects, at most, a sporadic effort to
remove human remains when they were uncovered during the construction of the
apartment building or the adjacent parking lot. In these circumstances, it seems likely
that one or more of those three plaintiffs have standing on the ground that they are related
by blood or marriage to someone who was interred, and is still interred, in parcel 175. If
any one of the three has standing, the requirement of standing is met. Fraternal Order of
Police Lodge 35 v. Montgomery County, 436 Md. 1, 13 n.13 (2013).18
17
The absence of deeds or certificates does bear on the issue of whether the burial
ground in this case is a “burial ground” to which BR § 5-505 applies—i.e., one in which
“burial lots have been sold . . . and deeds executed or certificates issued to buyers of the
lots[.]” Here, the court had information suggesting that burial plots were sold, but no
evidence that deeds were executed or that certificates were issued. The court addressed
that deficiency by reasoning that the tax records reflected the 1958 sale of a “burial
ground,” which the court tacitly equated with the sale of a burial ground under BR § 5-
505. But the sale of a generic “burial ground” is not necessarily the same as the sale of a
burial ground for which “burial lots have been sold in the burial ground and deeds
executed or certificates issued to buyers of the lots[.]” BR § 5-502(a)(2). We need not
consider that issue, however, as HOC does not argue that the absence of deeds and
certificates means that BR § 5-505 does not apply to the burial ground in this case.
18
Because of our resolution of this issue, it is unnecessary to decide whether
Reverend Adebayo and the Coalition also qualify as “persons in interest” who would be
21
III. The Merits
A. Sold “for Another purpose”
Our first substantive problem is that BR § 5-505(a) applies only to the sale of
certain burial grounds “for another purpose.” HOC argues that it was not selling its
property “for another purpose,” because the property would be used for the same
purposes for which it had been used for the last 50 years—an apartment building and a
parking lot. The Coalition responds that after the sale the property would be used for a
purpose other than a graveyard and, thus, that HOC was selling the property “for another
purpose.”
“The goal of statutory construction ‘is to ascertain and effectuate the actual intent
of the General Assembly.’” In re Emergency Remedy by Maryland State Bd. of
Elections, 483 Md. 371, 404 (2023) (quoting Thornton Mellon LLC v. Adrianne Dennis
Exempt Trust, 478 Md. 280, 313 (2022)). “[T]o determine [the General Assembly’s]
purpose or policy, we look first to the language of the statute, giving it its natural and
ordinary meaning.” Id. (quoting Peterson v. State, 467 Md. 713, 727 (2020)). We afford
“words their natural and ordinary meaning,” Davis v. State, 426 Md. 211, 218 (2012), and
“[w]e neither add nor delete language[.]” State v. Bey, 452 Md. 255, 265 (2017).
entitled to notice of a complaint to sell the burial ground for another purpose.
Nonetheless, as the pastor of the Macedonia Baptist Church, which is described as the
“sole surviving institution from the River Road African American community,” Reverend
Adebayo could certainly claim to have “a cultural affiliation” with those interred in the
burial ground. Similarly, the Coalition, which was created by members of the Macedonia
Baptist Church, who include the descendants of persons who had been enslaved on
plantations in the River Road area of Bethesda, would also seem to have “a cultural
affiliation” with those interred in the burial ground.
22
Unfortunately, the language of BR § 5-505(a) offers little assistance in resolving
this dispute. The statute probably applied to the initial sale of the cemetery, which
occurred in 1958, when the representatives of White’s Tabernacle conveyed parcel 175 to
Leo Furr. But did it apply only to the first sale “for another purpose”? Or did it also
apply to every subsequent conveyance over the last six decades, including the aborted
conveyance from HOC to Charger?
The statute is ambiguous because the statutory language can reasonably be
interpreted to apply both to the first sale alone and also to every subsequent sale. See 75-
80 Props., L.L.C. v. Rale, Inc., 470 Md. 598, 624 (2020). On one hand, lot 175 has been
used for the “purpose” of housing and parking since about 1969, so a sale for that same
“purpose” would not seem to qualify as a sale “for another purpose.” On the other hand,
the property still contains a burial ground, so the property will be used “for another
purpose” as long as it is not used (or perhaps not used solely) as a burial ground. “[A]
cemetery, including human remains, still exists on the [p]roperty,” albeit “in a desecrated
state.” Rhee v. Highland Dev. Corp., 182 Md. App. 516, 543 (2008).
“‘When a statute can be interpreted in more than one way, the job of this Court is
to resolve that ambiguity in light of the legislative intent, using all of the resources and
tools of statutory construction at our disposal.’” 75-80 Props., L.L.C. v. Rale, Inc., 470
Md. at 624 (quoting Lillian C. Blentlinger, LLC. v. Cleanwater Linganore, Inc., 456 Md.
272, 295 (2017)). One of those tools is a review of the legislative history. See, e.g.,
Nationstar Mortg. LLC v. Kemp, 476 Md. 149, 170 (2021). In this case, however, we
have little meaningful legislative history.
23
The predecessor of BR § 5-505 was first enacted in 1868. Archives of Maryland,
Vol. 142, Pages 2706-07.19 That statute was repealed and replaced in 1888. Archives of
Maryland, Vol. 481, Pages 617-19.20 The 1888 statute was revised to require compliance
with the Maryland Rules in 1962. Archives of Maryland, Vol. 651, Page 114.21 The
1962 statute was recodified in its present form as part of the Business Regulation Article
in 1992 (Archives of Maryland, Vol. 808, Page 164-65) and renumbered in 1997
(Archives of Maryland, Vol. 795, Pages 3876-77).
The phrase “for another purpose” first entered the statute in the 1992
recodification. The recodification is accompanied by a revisor’s note, which states that
this “new language” was “derived without substantive change from” the former statute.
Archives of Maryland, Vol. 808, Page 165.22 The revisor’s note added that “the reference
to the authority of a court to pass a judgment for sale of a burial ground for another
purpose is added to state explicitly what only was implied in the former law,” which had
referred to a sale “for other purposes.” Archives of Maryland, Vol. 651, Page 114 (1962
revision).
Thus, the legislative history informs us that the 1992 amendment did not change
the law, but the amendment sheds no light on what the law meant. In particular, the
19
For the full text of the 1868 statute, see n.32, below.
20
For the full text of the 1888 statute, see n.35, below.
21
The 1962 revision was codified in article 16, § 119, of the Maryland Code.
A revisor’s note is “an expression of legislative intent on which we may rely[.]”
22
Gateway Terry, LLC v. Prince George’s County, 253 Md. App. 457, 472 (2022).
24
legislative history sheds no light on whether a burial ground is being sold “for another
purpose” when it lies beneath the parking lot of a 55-year-old apartment building on a
property that has been sold several times “for another purpose,” without court approval.
With no meaningful assistance from the legislative history, we look to the other
tools of statutory construction. One of those tools is the canon that, “[i]n construing a
statute, ‘we avoid a construction of the statute that is unreasonable, illogical, or
inconsistent with common sense.’” 75-80 Props., L.L.C. v. Rale, Inc., 470 Md. at 624
(quoting Bellard v. State, 452 Md. 467, 482 (2017)). HOC’s interpretation could be said
to lead to an illogical result.
If, as HOC argues, BR § 5-505 does not apply to a property containing a burial
ground when the property has previously been sold “for another purpose” and is currently
being used for purposes other than a burial ground, then an owner, like HOC, could not
use BR § 5-505 to convey the property free of the lot holders’ claims. Nor could a
potential purchaser use § 5-505 to acquire the property free of those claims. In those
circumstances, the property might remain forever burdened by the claims. Because we
are skeptical that the General Assembly would have intended this result, we shall assume,
for the sake of argument, that the contemplated sale from HOC to Charger was the sale of
a burial ground “for another purpose.”23
23
If court approval were required for every sale of the property since 1958,
including the most recent sale in 2018, one might ask whether principles of estoppel,
laches, or waiver could bar the current claims. HOC, however, makes no such argument,
and we do not consider it in this opinion.
25
B. The Meaning of “May”
On the merits, HOC’s argument is quite simple. BR § 5-505, it observes, says that
an action “may be brought for sale of a burial ground for another purpose,” not that such
an action “shall be brought.” (Emphasis added.) The use of “may,” HOC argues, “is an
unambiguous declaration that an action on the part of the owner is not mandatory but
permissive” and that it is necessary to bring the action only “when the owner seeks to
convey clear title.” Therefore, HOC concludes, the statute “does not command that an
owner of land that was a former burial ground must bring an action.” (Emphasis in
original.)
HOC is correct that “may” (as opposed to “must” or “shall”) generally connotes
permission or authorization. See, e.g., Uthus v. Valley Mill Camp, Inc., 472 Md. 378,
393-94 (2021) (citing WSC/2005 LLC v. Trio Ventures Assocs., 460 Md. 244, 271 (2018);
Brodsky v. Brodsky, 319 Md. 92, 98 (1990); Rowland v. Harrison, 320 Md. 223, 232-33
(1990); Maryland-Nat’l Cap. Park & Plan. Comm’n v. Silkor Dev. Corp., 246 Md. 516,
522-24 (1967)). Maryland courts “have long interpreted the term ‘may’ in a statute to be
permissive.” Id. at 393. “By contrast,” Maryland courts have “long held that the term
‘shall’ in a statute indicates the legislative intent that the statute be mandatory.” Id. at
394 (citing 75-80 Props., L.L.C. v. Rale, 470 Md. at 631-32; Perez v. State, 420 Md. 57,
63 (2011); State v. Green, 367 Md. 61, 82 (2001); Thanos v. State, 332 Md. 511, 522
(1993); In re James S., 286 Md. 702, 706 (1980); Harvey v. State, 51 Md. App. 113, 118-
19 (1982)).
26
For example, in Uthus v. Valley Mill Camp, Inc., 472 Md. at 393-97, the Court
interpreted RP § 14-132(d), which states that, in an action involving the wrongful
detainer of real property, the “person claiming possession may make complaint in writing
to the District Court of the county in which the property is located.” (Emphasis added.)
In view of “[t]he permissive language of the wrongful detainer statute,” the Court held
“that a wrongful detainer action in District Court is an option to pursue when attempting
to remove someone not legally on a property, but not the exclusive remedy.” Id. at 396.
Thus, the Court held that the entity claiming possession was not required to assert its
rights through a wrongful detainer action in district court, but that it could instead pursue
an action for trespass in the circuit court. Id.
The Coalition responds by citing Office & Professional Employees International
Union, Local 2 v. Mass Transit Administration, 295 Md. 88, 96 (1982), in which the
Court remarked that, “where a statute authorizes or permits a person or agency to take a
certain type of action in a particular manner, such manner becomes a mandatory
limitation, and the action must be taken in conformity with it.” On the basis of this
authority, the Coalition argues that, in some circumstances, “may” may connote “shall.”
In the Office & Professional Employees case, the General Assembly had enacted
legislation stating that the Mass Transit Administration (“MTA”) “may” enter into
collective bargaining agreements with “‘the accredited representatives of the employees
who form part of any operating company that the Administration acquires.’” Id. (quoting
Maryland Code (1977), § 7-601 of the Transportation Article). A few years later, the
MTA began to plan and develop a subway, which entailed the hiring of new clerical
27
employees. See id. at 92. In addition, the MTA became part of the new Department of
Transportation, which resulted in the hiring of more, new clerical employees. Id.
It was undisputed that these new employees “were not employed by any operating
company acquired by the MTA.” Id. at 98. Nonetheless, the new employees demanded
the right to become members of the bargaining unit with which the MTA was authorized
to engage in collective bargaining. Id. at 92-93. In response, the MTA sought and
obtained a declaratory judgment establishing that it had no obligation to enter into
collective bargaining with these employees. Id. at 93-94.
On appeal, the Court affirmed. It based its decision, in part, on two principles of
statutory construction: first, the principle that the expression of one thing implies the
exclusion of all others (i.e., expressio unius est exclusio alterius); and second, the
principle, cited by the Coalition, that “where a statute authorizes or permits a person or
agency to take a certain type of action in a particular manner, such manner becomes a
mandatory limitation, and the action must be taken in conformity with it.” Id. at 96.
With these principles in mind, the Court reasoned that “the statutory permission
for the MTA to enter into collective bargaining agreements ‘with the accredited
representatives of the employees who form part of any operating company that the
Administration acquires’ places a limitation upon the MTA’s authority to enter collective
bargaining agreements.” Id. “The MTA,” in other words, “may enter into such
agreements only in accordance with § 7-601[,]” the statute that authorized the agency to
engage in collective bargaining. Id. Because the new employees unambiguously fell
28
outside the ambit of § 7-601 (id. at 98; id. at 102-03), the MTA had no authority to
engage in collective bargaining with them. See id. at 96.
The Coalition argues that, just as the MTA was statutorily empowered to enter into
collective bargaining agreements as long as it acted in accordance with the terms of the
statute, so too is the owner of a burial ground statutorily empowered to sell the ground for
another purpose as long as it acts in accordance with BR § 5-505. In the Coalition’s
view, therefore, BR § 5-505 permits HOC to sell its property, but only if it seeks and
obtains the court’s approval under the statute.
The principal difficulty with the Coalition’s argument is that it assumes what it
needs to prove, which is that the owner of a burial ground has no right to sell the ground
for another purpose except in accordance with BR § 5-505. Notably, in the Office &
Professional Employees case, the Court recognized that, “absent express legislative
authority, a government agency,” like the MTA, “cannot enter into binding arbitration or
binding collective bargaining agreements establishing wages, hours, pension rights, or
working conditions for public employees.” Id. at 97. But what is the basis for saying
that, absent legislative authority, the owner of a burial ground is similarly incapable of
selling the ground? Why is the grant of authority in BR § 5-505 any different from the
grant of authority in RP § 14-132(d), which permitted, but did not require, a person
claiming possession of real property to pursue a wrongful detainer action?
C. The Common Law
The Coalition responds by asserting that, at common law, a burial ground was
“perpetually dedicated as a resting place of the dead” and “could not be sold for another
29
purpose” unless a court ordered otherwise. In the Coalition’s view, BR § 5-505 is a
statutory “exception to the common law” by which the owner of a burial ground may
obtain a court’s permission to sell the burial ground for another purpose. The circuit
court accepted the Coalition’s conclusion.
The Coalition bases its assertions about the common law on a number of premises.
We shall consider each of them in turn.
1. Beatty v. Kurtz
In arguing that the common law prohibited the sale of a burial ground for another
purpose, the Coalition relies prominently on Beatty v. Kurtz, 27 U.S. (2 Pet.) 566 (1829).
Beatty has nothing to do with the common law or about a common-law prohibition on the
sale of burial grounds.
The pertinent facts of Beatty are as follows:
In 1769, Charles Beatty and a partner laid out an addition to the town of
Georgetown (id. at 578), which was then in Maryland, but became part of the District of
Columbia in 1790. “Upon the original plan so recorded, one lot was marked out and
inscribed with these words, ‘for the Lutheran church[.]’” Id. at 579.
Decades later, the putative trustees of the church, on behalf of themselves and the
members of the church, filed suit in the court of equity in the District of Columbia. Id.
They alleged that the members of the church had taken possession of the lot 50 years
earlier, had built a church on the lot, and had used the land as a burial ground for the
members of the church. Id. The first church had “decayed,” but the trustees alleged that
the members intended to build another church on the property “whenever their funds
30
would enable them so to do.” Id. They also alleged that “the lot ha[d] been exempted
from taxation as property set apart for a religious purpose.” Id.
Charles Beatty, the grantor, had died 16 years earlier, without having conveyed the
lot. Id. at 579-80. During his life, however, Beatty had “constantly avowed that the lot
was appropriated for the Lutherans, and that they were entitled to it.” Id. at 581.
Furthermore, Beatty’s heir, the defendant Charles A. Beatty, had, since his father’s death,
“repeatedly admitted the claim of the Lutherans to the lot, and his willingness that it
should remain for them, as it had been originally appropriated.” Id. at 582.
The trustees alleged that the second defendant, John T. Ritchie, had
“unwarrantably disputed their title,” that he had “entered upon the lot and removed some
of the tomb stones erected thereon,” and that he “mean[t] to dispossess [the members of
the church] and to remove the tomb stones and graves.” Id. at 580.24
By way of relief, the trustees asked that Beatty’s heir be compelled to convey the
lot to them. Id. They also asked “that they may be quieted in their possession, and that a
writ of injunction may issue,” apparently to bar the removal of the gravestones. Id. In
other words, the trustees asked a court of equity to grant equitable relief: a decree of
specific performance requiring that the lot be conveyed to them; an order quieting title to
the property; and an injunction against the desecration of the graveyard.
24
Although this information is not contained in the opinion itself, one author has
written that Beatty’s heirs and those of his co-grantor “entered the churchyard in the late
1820s and tore down fences and tombstones to prepare it for redevelopment.” Tanya D.
Marsh, When Dirt and Death Collide, 30 Prob. & Prop. 59, 61 (2016). The heirs did so
on the premise that “the grant of land in the 1769 plat was a defeasible fee, the condition
of which failed when the church fell down and was not replaced[.]” Id.
31
The court of equity “decreed a perpetual injunction against the defendants.” Id.
On their appeal, the United States Supreme Court affirmed the grant of equitable relief.
In the opinion of the Court, Justice Joseph Story, the author of the nineteenth
century treatise Commentaries on Equity Jurisprudence, wrote that the case presented
two “principal questions”:
first, whether the title to the lot in question ever passed from Charles
Beatty, so far at least as to amount to a perpetal [sic] appropriation of it to
the use of the Lutheran church or to the pious uses to which it has been in
fact appropriated. And secondly, if so, whether it is competent for the
plaintiffs [the trustees] to maintain the present bill.
Id. at 582.
In response to the first question, the Court observed that, when Beatty first
expressed an intention to convey a lot to the church, the church did not exist, and thus
“there was no grantee capable of taking” the conveyance. Id. “Nor [could] any
presumption of a grant arise from the subsequent lapse of time, since there never ha[d]
been any such incorporated Lutheran church there capable of taking the donation.” Id.
“If, therefore, it were necessary that there should be a grantee legally capable of taking, in
order to support the donation in this case; it would be utterly void at law, and the land
might be resumed at pleasure”—by Beatty’s heir. Id. at 582-83. In these circumstances,
the Court recognized that, “[i]f the appropriation, therefore, is to be deemed valid at all, it
must be upon other principles than those which ordinarily apply between grantor and
grantee.” Id. at 583.
The Court found those principles in the rules of equity pertaining to the dedication
of property to “public and pious uses.” Id. The Court cited former Article 34 of the
32
Maryland Declaration of Rights (1776), which, at the time, permitted the “sale, gift, lease
or devise of any quantity of land, not exceeding two acres, for a church, meeting-house,
or other house of worship, or parsonage, or for a burying-ground[.]”25 “To this extent,”
wrote the Court, former Article 34 “recognize[d] the doctrines of the statute of Elizabeth
for charitable uses,”26 under which leases for charitable uses “would be upheld, although
there were no specific grantee or trustee.” Beatty v. Kurtz, 27 U.S. at 583. The Court
reiterated that the grantor never withdrew the “appropriation” to the church (id. at 583-
84); that the grantor’s “plan and appropriation were constantly kept in view by all the
legislative acts passed on the subject of this addition” to the town of Georgetown; that
“[t]he plan was required to be recorded as an evidence of title”; and that the incorporation
of the addition into Georgetown “had reference to” the plan. Id. at 584.
25
In general, former Article 34 was intended to prohibit the conveyance of real
property to members of the clergy or to religious institutions unless the conveyance was
expressly sanctioned by the General Assembly. Constitutional Convention Study
Documents of the Constitutional Convention Commission of Maryland 32 (State of Md.
1968). The Beatty Court cited an exception that permitted small conveyances (at first,
not exceeding two acres; later, not exceeding five acres) without legislative approval.
Article 34 was renumbered as Article 35 in 1851 and as Article 38 in 1864.
Constitutional Convention Study Documents of the Constitutional Convention
Commission of Maryland, supra, at 32; Dan Friedman, The History, Development, and
Interpretation of the Maryland Declaration of Rights, 71 Temple L. Rev. 637, 669
(1998). It became a virtual dead letter in 1948, when the voters approved an amendment
to remove the requirement of legislative approval for conveyances to the clergy or to
religious institutions. Constitutional Convention Study Documents of the Constitutional
Convention Commission of Maryland, supra, at 32. It was repealed in 1977. Dan
Friedman, The History, Development, and Interpretation of the Maryland Declaration of
Rights, supra, 71 Temple L. Rev. at 705 n.509.
26
The Court was referring to the Charitable Uses Act of 1601 (43 Eliz. I, c.4).
33
From these premises, the Court concluded that the “appropriation” to the church
“might at all times have been enforced as a charitable and pious use, through the
intervention of the government as parens patriae, by its attorney general or other law
officer.” Id. The Court added: “It was originally consecrated for a religious purpose; it
has become a depository of the dead; and it cannot now be resumed by the heirs of
Charles Beatty.” Id. Thus, the Court implicitly answered its first question in the
affirmative: title to the lot had passed from Charles Beatty to the Lutheran church.
The Court turned to the second question: “the competency” of the putative trustees
“to maintain the present suit.” Id. The Court began by stating that if the trustees “were
proved to be the regularly appointed committee of a voluntary society of Lutherans, in
actual possession of the premises, and acting by their direction to prevent a disturbance of
that possession, under circumstances like those stated in the bill,” there would be no
“serious objection to their right to maintain the suit.” Id. The Court proceeded to
explain, at some length, why the suit belonged in equity rather than at law:
It is a case, where no action at law, even if one could be brought by the
voluntary society, (which it would be difficult to maintain,) would afford an
adequate and complete remedy. 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. The property consecrated to their
use by a perpetual servitude or easement, is to be taken from them; the
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 so as to leave no trace of the last home of
their ancestry to those who may visit the spot in future generations. It
cannot be that such acts are to be 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.
34
Id. at 584-85.
In the Court’s view, “[t]he only difficulty” was whether the trustees had “shown in
themselves a sufficient authority” to pursue the suit, since their authority was “not
evidenced by any formal vote or writing.” Id. at 585. Although the Court was
“incline[d] to think” that the trustees’ authority “might be fairly presumed,” it found it
unnecessary “to decide the case on this point[.]” Id. Instead, the Court reasoned that this
was “one of those cases, in which certain persons, belonging to a voluntary society, and
having a common interest, may sue in behalf of themselves and others having the like
interest, as part of the same society; for purposes common to all, and beneficial to all.”
Id.
In summary, Beatty v. Kurtz was an action in equity to compel the conveyance of
a lot that had been dedicated for a charitable purpose (a church, to which a graveyard was
later attached), to quiet title to the lot, and to enjoin others from trespassing onto the lot.
Beatty v. Kurtz holds: (1) that the grant to the church was enforceable in equity and (2)
that the trustees of the church could sue in equity to enforce those rights.
Beatty v. Kurtz does not hold, or even say, suggest, or imply, that at common law
the owner of a burial ground was prohibited from selling the burial ground for another
purpose. Beatty v. Kurtz has nothing to do with the common law, or with the sale of a
burial ground. It was not an action at common law. It did not concern the sale of a burial
ground. And it affords no support for the Coalition’s argument (and the circuit court’s
35
conclusion) that BR § 5-505 is a statutory exception to an alleged common-law
prohibition against the sale of burial grounds for another purpose.27
In fact, because “the Church of England had the legal authority to create rules and
adjudicate disputes regarding human remains” in England, “[t]he law of burial places in
England at the time of the American Revolution was therefore largely contained in
ecclesiastical law.”28 Tanya D. Marsh, When Dirt and Death Collide, 30 Prob. & Prop.
59, 60 (2016). The United States Constitution rejects “the establishment of a single
church,” so “the United States was born with a sizeable legal void—it had no law
27
Maryland’s highest court followed Beatty in Boyce v. Kalbaugh, 47 Md. 334
(1877), a case that the Coalition cited in its supplemental brief. In Boyce the parties
asserted conflicting claims to a plot of ground. One, a religious society, had used part of
the plot as a burial ground “for upwards of twenty years.” Id. at 336. This “notorious”
use, the Court wrote, “affords presumptive evidence of its dedication as such.” Id. The
Court added that “the total inadequacy of any proceeding at law to give full redress for its
disturbance, furnishes sufficient ground for the intervention of a Court of equity.” Id.;
accord Radomer Russ-Pol Unterstitzung Verein of Baltimore City v. Posner, 176 Md.
332, 334 (1939) (stating that “[e]quity only affords an adequate remedy in cases
involving the disposition of the bodies of the dead”). Following Beatty, whose “material
facts” it found to be “analogous” (Boyce v. Kalbaugh, 47 Md. at 336), the Court held that
the persons with a conflicting claim to the plot “cannot in good conscience and according
to the principles of enlightened humanity, be permitted to defend themselves by the
assertion of a stale legal claim; but they must be held to be effectually estopped from
doing so.” Id. at 337. Accordingly, the Court affirmed an injunction that prohibited the
conflicting claimants from erecting structures on the plot. Id. Notably, Boyce v.
Kilbaugh, like Beatty, is an action in equity, not at common law. Moreover, Boyce v.
Kilbaugh, like Beatty, does not involve the sale of a burial ground, much less some
common-law prohibition on such a sale.
28
This is not to say that the common law was entirely silent on the issue of burial
grounds and the proper treatment of the dead. At common law, it was a criminal offense
“to treat the dead body indecently, and it was indictable wantonly or illegally to disturb a
dead human after burial.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law 476
(3d ed. 1982) (footnotes omitted).
36
regarding the disposition of human remains or burial places.” Id. (emphasis added).
Because Congress and the state legislatures did not address the issue, “disputes in the
18th and 19th centuries were litigated, primarily in courts of equity[.]” Id. Beatty v.
Kurtz is a prominent example of a court of equity grappling with novel issues pertaining
to a property that had been used as a church and a graveyard, but had never been formally
conveyed. It is not a case about a common-law prohibition on selling burial grounds for
another purpose.29
2. Chapter 308 of the Laws of 1832
The Coalition claims to find other evidence of that common-law prohibition in
Chapter 308 of the Laws of 1832.30 According to the Coalition, the statute “forbade the
29
In Brendle v. German Reformed Congregation of Jackson Township, 33 Pa. 415,
423 (1859), a court of equity enjoined the congregation from mortgaging its graveyard
(not selling it), but declined to enjoin the congregation from mortgaging the rest of its
property. The Pennsylvania Supreme Court affirmed the decision not to enjoin the
congregation from mortgaging the rest of its property. The congregation did not appeal
from the order enjoining it from mortgaging the graveyard, so the Supreme Court did not
consider the validity of that ruling. Id. The Supreme Court’s opinion, however, suggests
that, under a statute from the colonial era, the congregation had broad powers to dispose
of all of its property, including the graveyard:
For what purposes could this congregation legitimately hold this land? The
Act of 1731 says, for places of worship, burying-grounds, schools, and
almshouses. Having, therefore, bought the land, they may hold and use it
for these purposes, and they alone are to judge in what proportions they will
apply it to each purpose. And the land being entirely their own, they may
sell it when and to whom they please. No restraints on its use or alienation,
imposed by themselves or others, are of any validity[.]
Id. at 425 (emphasis added).
30
In full, the statute provides as follows:
37
Archbishop of Baltimore and others from selling burial grounds.” Yet, if the common
law already prohibited the Archbishop from selling burial grounds, as the Coalition says
it did, it is difficult to understand why it was necessary to enact a statute to prohibit him
from doing so.
Section 1. Be it enacted by the General Assembly of Maryland, That it shall
and may be lawful to, and for the trustees of any Roman Catholic Church, in
whom the title to any lot or lots of ground, whereon any Roman Catholic
Church is now erected, or which is used as a grave-yard attached to any such
church, to convey the same by deed to be executed, acknowledged and
recorded in the visual manner, to the Most Reverend James Whitfield, the
present Arch Bishop of Baltimore, and his successors in the Archiepiscopal
see of Baltimore, according to the discipline and government of the Roman
Catholic Church, forever, and it shall and may be lawful to, and for any
person or persons or body corporate, to convey unto the Roman Catholic
Arch Bishop of Baltimore, for the time being, and his successors as
aforesaid, forever, by deed as aforesaid, any lot, piece or parcel of ground as
aforesaid, for the purpose of having a Church erected thereon, for worship
according to the discipline and government of the Roman Catholic Church,
or for a grave-yard as aforesaid, which said lots of ground and premises,
when so conveyed, are to be held by the said Roman Catholic Arch Bishop
of Baltimore, and his successors as aforesaid, for the uses of the members of
the Roman Catholic Church, worshipping at the respective places where
such Churches may be, according to the government and discipline of the
Roman Catholic Church; Provided always, that the property and estate, so to
be conveyed and held, shall not, for any one congregation, exceed two acres;
and provided, that such property be improved, enjoyed and used, only for a
Church lot, parsonage and burial ground, or such conveyance, for such lot,
shall be void; and provided, that nothing herein contained shall be so
construed as to authorise the said Arch Bishop of Baltimore or his
successors, to exact from the members of any congregation, who may make
conveyances under this act, any contributions as a consideration for the use
of said church property so conveyed, without their consent.
Archives of Maryland, Vol. 547, Page 376.
38
In any event, the 1832 statute did not, by its terms, forbid the Archbishop or
anyone else from selling burial grounds. Rather, the statute permitted the trustees of a
Roman Catholic church to convey a church or a graveyard to the Archbishop and his
successors. The statute also permitted any person or “body corporate” to convey property
to the Archbishop, provided that the property was “improved, enjoyed and used, only for
a Church lot, parsonage and burial ground,” and provided that the property so conveyed
did not, “for any one congregation, exceed two acres.” In addition, the statute provided
that the conveyance would be “void” unless the property was “improved, enjoyed and
used, only for a Church lot, parsonage and burial ground.” This statute is not evidence of
a common-law prohibition against the sale of burial grounds for other purposes.31
31
The 1832 statute was enacted against the backdrop of former Article 34 of the
Maryland Declaration of Rights (1776), which generally prohibited the conveyance of
more than two acres of real property to members of the clergy or to religious institutions
unless the conveyance was expressly sanctioned by the General Assembly. See supra
n.25. A nineteenth century decision asserts that the 1832 statute “empowered” the
Archbishop “to hold property in a corporate capacity.” Gump v. Sibley, 79 Md. 165, 171
(1894). When the General Assembly enacted the predecessor of BR § 5-505 in 1868, and
first authorized courts to approve the sale of certain kinds of burial grounds free and clear
of certain claims, the legislature “enlarged the corporate powers granted to the archbishop
by the act of 1832.” Gump v. Sibley, 79 Md. at 171. Specifically, the legislature, by that
act, “removed” the statutory “restriction” that required the Archbishop to use a lot “only
as burial ground” and “enabled” the Archbishop “to cause the title to be conveyed to a
purchaser.” Id. at 171-72.
39
3. The 1868 Statute and Partridge v. First Independent Church
In 1868 the General Assembly passed Chapter 211 of the Laws of 1868, the first
statutory predecessor of BR § 5-505.32 Maryland’s highest court, then called the Court of
Appeals, first construed the statute in 1874, six years after it took effect. Partridge v.
First Independent Church, 39 Md. 631 (1874). The Court’s opinion is inconsistent with
32
The 1868 statute provided as follows:
Upon 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 interest as lotholders in such
ground whether they are entitled as original lot-holders and whether they be
residents or non-residents, adults or infants.
Archives of Maryland, Vol. 142, Pages 2706-07.
40
the Coalition’s contention that the statute created an exception to a common-law
prohibition against the sale of burial grounds for another purpose.
In Partridge, the church had sold a burial ground for another purpose, in
accordance with the 1868 statute. The Court was asked to decide two questions: (1) “the
nature and extent of the interest of the lot-holders”; and (2) “whether, and to what extent
they are entitled to distribution of the proceeds of the sale for and in respect to
improvements placed on the lots.” Id. at 636.
Each lot holder had purchased a certificate from the church. Id. The certificate
established that the lot holder was the proprietor of a designated lot and that the church
had granted and conveyed the lot to the lot holder and his heirs and assigns, forever,
subject to the regulations of the church’s trustees. Id. The certificates were not under
seal. Id.
The Court held, first, that the certificate “conferred no title or estate in the soil; nor
could it operate as a grant of an easement, because it was not under seal[.]” Id. at 637.
“At most,” the Court wrote, the certificate “conferred only a privilege or license to make
interments in the lot described exclusively of others, as long as the ground remained a
burying ground or cemetery.” Id. The Court held: “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.” Id. Quoting
a Pennsylvania case concerning a statute that authorized the closure of a cemetery, the
Court added: “‘[I]f in the course of time it should become necessary to vacate the ground
as a burying ground, all that he could claim, in law or equity, would be that he should
41
have due notice and the opportunity afforded to him of removing the bodies and
monuments to some other place of his own selection, or that, on his failing to do so, such
removal should be made by others.’” Id. at 637-38 (quoting Kincaid’s Appeal, 66 Pa.
411, 421 (1870)).33
Turning to the second question, the Court asked, “whether the lot-holder [was]
entitled to compensation or reimbursement, out of the proceeds of sale of the burying
ground, for improvements or erections placed on his lot[.]” Id. at 638. Partridge, who
owned the lot, had spent a considerable sum of money on a burial vault. Id. The church
had given Partridge the right to remove the vault. Id. Partridge, however, evidently
declined to do so. Id. Instead, he insisted that he be paid out of the proceeds of the sale
for the cost of constructing a new vault elsewhere. Id.
The Court rejected Partridge’s claim. Id. at 638-39. According to the Court,
“[t]he most that the lot-holders could claim to receive is the price paid by them for the
license.” Id. at 639. They had no interest in the land, and thus no interest in the proceeds
of the sale of the land. Id. And although the 1868 statute directed that the proceeds be
distributed “among the parties interested according to their several interests, as the same
33
Partridge cited two similar cases that had also been cited in Kincaid’s Appeal:
Richards v. North West Protestant Dutch Church, 32 Barb. 42, 20 How. Pr. 317 (N.Y.
Sup. Ct. 1859); and Windt v. German Reformed Church, 4 Sand. Ch. 471, 7 N.Y. Ch.
Ann. 1175 (N.Y. Ch. 1846). Another case to similar effect is Price v. Methodist
Episcopal Church, 4 Ohio 515, 539-41 (1831). By contrast, “[t]here are cases holding
that where a private graveyard [e.g., a family graveyard] is established and clearly
marked out, and markers maintained, an implied reservation or easement is created.” Hill
Sand & Gravel Co. v. Pallottine Fathers House of Studies, Inc., 220 Md. 526, 531 (1959)
(citing Heligman v. Chambers, 338 P.2d 144 (Okla. 1959); Hines v. State, 149 S.W. 1058
(Tenn. 1911)).
42
shall be shown to the Court,” the Court interpreted that language to mean that “such
interest in the land sold as would be represented by a fair and just proportion of the
proceeds of the sale.” Partridge v. First Indep. Church, 39 Md. at 639. Apparently
because Partridge had no interest in the land, the statute gave him no right to the sale
proceeds.
At this point, the Partridge Court mused that, “[i]f this cemetery had been sold
simply from motives of gain or convenience to the church corporation, and against the
consent of the lot-holders, then, perhaps, the right to compensation for all reasonable
outlay for improvement and adornment of the burial lots could have been asserted[.]” Id.
In Partridge, however, a court had authorized the sale under the 1868 statute, which
required a finding that “it was necessary, and would be for the interest and advantage of
the parties interested, that the ground should be sold.” Id. (emphasis in original). In
other words, the sale “was not, therefore, a mere matter of gain or caprice on the part of
the church corporation that the ground be sold.” Id.
The Court’s closing comments strongly imply its belief that a burial ground could
be sold for another purpose without obtaining court approval under the statute. For
example, the Court suggested that if the ground were sold without court approval, the lot
holders might have stronger claims than they would have if the ground were sold with
court approval. Moreover, the Court envisioned that a burial ground could be sold for
purposes of “gain,” “convenience,” or “caprice,” which would not satisfy the statute.
Thus, a mere six years after the enactment of the first statutory predecessor of BR § 5-
43
505, the court recognized that a burial ground could be sold for another purpose without
following the statutory procedure.
4. Reed v. Stouffer
The Coalition finds support in Reed v. Stouffer, 56 Md. 236 (1881), in which the
Court held that the proof was insufficient to show that the sale of the burial ground was
“necessary” within the meaning of the 1868 statute. See id. at 253; see also id. at 252
(noting that neither of the two witnesses “testified that it was necessary to have [the
ground] sold”) (emphasis in original). The Coalition argues that “[t]he Court’s denial of
a sale under § 5-505’s predecessor statute evidences that § 5-505 is mandatory.”
The Coalition has misread Reed v. Stouffer as well as the 1868 statute that it
applied. The 1868 statute expressly required a court to find that “it [was] necessary and
would be for the interest and advantage of the parties interested that the ground should be
sold” before the court could approve the sale. See supra n.32. Thus, under the 1868
statute, a court could approve the sale of certain burial grounds for another purpose only
if, among other things, the proof “was sufficient to satisfy the court that such sale is
necessary[.]” Reed v. Stouffer, 56 Md. at 252 (emphasis in original). Yet, neither the
case nor the 1868 statute say that it was necessary (or, to use the Coalition’s term,
“mandatory”) to invoke the statutory procedure; instead, the case and the statute say that
the benefits of the 1868 statute (a decree passing title free and clear of the claims of the
lot holders and others) are unavailable in the absence of proof that the sale was necessary.
In any event, in 1888, the General Assembly amended the statute to relax the
requirement of proof that the sale was strictly “necessary.” To approve a sale under the
44
1888 statute, a court was required to find only that “it [was] expedient or would be to the
interest and advantage of the parties concerned that the said burial ground should be
sold.” (Emphasis added). Thus, under the 1888 statute, the proponent of the sale no
longer had to prove that the sale was “necessary.”34
In fact, because the 1888 statute (unlike the 1868 statute) is phrased in the
disjunctive (using “or” rather than “and”), the proponent did not even have to prove that
the sale was “expedient,” but only that it would be “to the interest and advantage of the
parties concerned” that the ground be sold. The current statute continues to employ that
relaxed standard. See BR § 5-505(b) (requiring a court to find only that “it is expedient
or would be in the interest of the parties to sell the burial ground”).
In short, in arguing that Reed v. Stouffer means that section 5-505 is “mandatory,”
the Coalition misinterprets language that has not been part of the statute for more than
130 years.
5. Rayner v. Nugent
The clearest refutation of the Coalition’s position (that the common law prohibited
the sale of cemeteries) is a case that neither party cited: Rayner v. Nugent, 60 Md. 515
(1883). In that case, a church had “determined to abandon the use of the ground as a
cemetery and to dispose of it” in 1867 (id. at 518), the year before the General Assembly
passed the first statutory predecessor of BR § 5-505. John Nugent purchased the property
from the church. Rayner v. Nugent, 60 Md. at 518.
34
For the full text of the 1888 statute, see n.35, below.
45
Before the conveyance to Nugent, the bodies buried in the cemetery were
disinterred and reinterred elsewhere. Id. In addition, some of the lot holders received
refunds of the consideration that they had paid for their “certificates” (i.e., the documents
that entitled them to inter their dead in the cemetery). Id. No one seems to have objected
to the removal of the bodies. Id. Nor does anyone seem to have claimed the right to
burial in the cemetery at or after the time of the conveyance. Id.
After Nugent’s death, his administrators agreed to sell the property to Rayner. Id.
at 516. Rayner, however, tried to back out of the deal, objecting to the ratification of the
sale in the orphans’ court. Id. The orphans’ court ratified the sale. Id. at 517.
On appeal, the Court framed the issue as follows: “The title in fee which the
church received having been conveyed by deed to Nugent, it is only left to inquire
whether there is anything in the character of the certificate issued to the lot-holders that
can defeat or qualify the estate thus acquired by Nugent.” Id. at 518.
The Court reasoned that, through their certificates, the lot holders acquired, at
most, “a privilege or license to make interments in the lot described, exclusive of others,
so long as the ground remains a burying place or cemetery.” Id. at 519. Citing
Partridge, the first case concerning the 1868 statute, the Court wrote: “Whenever,
therefore, by lawful authority the ground ceases to be a place of burial, the lot-holders’
rights and privileges cease, except for the purpose of removing the remains previously
buried.” Id. Thus, when the church “decided that the ground was no longer desirable as
a place of interment,” as it was empowered to do, “that decision operated to revoke the
certificate or license, and the right of further interment was extinguished.” Id. At that
46
point, “[t]he only right remaining was that of removing the bodies of those buried in the
cemetery.” Id. As that had already been done, the lot holders no longer had “any interest
in the premises.” Id.
The Court dismissed Rayner’s concern that the unreimbursed lot holders might
assert some right against him: “[W]e can perceive no ground upon which they could have
any cause of action against the appellant for exercising any rights of possession enuring
to him as the successor to Nugent’s fee simple title.” Id. at 520. The Court also
dismissed Rayner’s concern that “the sale to Nugent was a private one, and not made
under a bill filed according to the provisions of the Act of 1868, ch. 211” (id.)—i.e., the
first statutory predecessor of BR § 5-505. The Court explained:
That Act of Assembly has furnished additional facilities for parties
interested in abandoned burial grounds to procure a sale of the same; but it
in no wise conflicts 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, upon which this
appeal has been determined.
Rayner v. Nugent, 60 Md. at 520 (emphasis added).
Rayner clearly demonstrates that, even before the enactment of the 1868 statute,
the owner of a burial ground (in that case, the church) had the ability to sell the burial
ground for another purpose. If the common law prohibited a person from selling a burial
ground for another purpose, as the Coalition asserts, then Nugent could never have
acquired the former burial ground from the church and could not (through his
administrators) have conveyed that property to Rayner. As the Rayner Court recognized,
the 1868 statute simply “furnished additional facilities” for the sale of a burial ground.
47
Id. at 520. Under those “additional facilities,” the parties concerned could gain the
security of a court judgment that extinguished the claims of the owner and the lot holders.
6. The 1888 Statute
In 1888, the General Assembly repealed the 1868 statute and replaced it with a
new statute, Chapter 369 of the Laws of 1888.35 The Coalition finds significance in the
35
The 1888 statute provided as follows:
In 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
lotholders 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
48
1888 statute because the current statutory language was “derived without substantive
change from” the 1888 statute as revised to refer to the Maryland Rules in 1962.
Archives of Maryland, Vol. 808, Page 165.
The Coalition focuses on the lengthy first clause of the 1888 statute, which begins,
“In any case in which a burial ground has ceased to be used for burial purposes[.]” On
the basis of that clause, the Coalition argues that the 1888 statute “further clarified that
the provisions outlined in the statutes must be adhered to whenever one desires to sell a
burial ground for another purpose.” Read in full, the statutory language does nothing of
the sort.
Despite the late-Victorian verbosity of the 1888 statute, the literal terms of the
opening clause clearly establish that the entity that is required to act is “the court.” The
statute required “the court” to “order notice by publication” if a bill were filed in equity
in the circuit court in the city or county in which a burial ground was situated, setting
forth facts establishing that the “burial ground has ceased to be used for burial purposes”;
that “the ground ha[d] been dedicated and used for burial purposes”; that “lots ha[d] been
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, and of all persons in
interest as lotholders in such ground, whether they are entitled as original
lotholders, and whether they be residents or non-residents, adults or infants.
Archives of Maryland, Vol. 481, Page 617-19.
49
sold therein, and deeds executed or certificates issued to purchasers thereof”; and that it
was “considered desirable to dispose of said burial ground for other purposes[.]”
The 1888 statute dictated the terms of a bill if a bill were filed—it must “contain[]
the names of the lot owners or their assignees so far as known.” The statute did not,
however, require the seller, the buyer, or anyone else to invoke the procedures of the
statute. Instead, the sole consequence of failing to follow that statute was that the buyer
would not acquire the property “free, clear and discharged of, and from the claims” of the
lot holders and the owner of the burial ground.
7. Diffendall v. Diffendall
One of the few cases mentioning BR § 5-505 or its predecessors is Diffendall v.
Diffendall, 239 Md. 32 (1965). In Diffendall, the Coalition asserts, Maryland’s highest
court “again recognized the mandatory nature of the statute.” We see nothing in the
Diffendall opinion to support that assertion.
Diffendall concerned a putative conflict between a statute and a constitutional
provision. The statute (Md. Code (1957), art. 23, § 164) stated that a burial lot or crypt
“shall not in any manner be subject to attachment or execution for debt or affected by the
insolvent laws of this State.” The constitutional provision (Article III, § 44) implicitly
permitted the General Assembly to exempt only $500 of the “property of the debtor”
from execution.
In Diffendall, a judgment-creditor claimed that the debtor’s family burial crypts
were worth more than $500 and that the statute was unconstitutional because it purported
to prohibit him from executing upon the crypts. Diffendall v. Diffendall, 239 Md. at 36.
50
The Court rejected the creditor’s constitutional contention by reasoning the debtor’s
“estate or interest” in the crypts “was not ‘property of a debtor’ within the purview” of
the constitutional provision. Id. at 38.
In reaching its decision, the Court began by acknowledging the expansive scope of
the word “property.” “There can be little doubt,” the Court wrote, “that the word
‘property,’ when considered in a broad sense, is a term of wide and rather comprehensive
signification.” Id. at 36. The Court added that “property” “embraces everything which
has exchangeable value or goes to make up a man’s wealth—every interest or estate
which the law regards of sufficient value for judicial recognition.” Id.
The Court recognized, however, that grave sites and crypts are an “unusual” kind
of property. Id. at 37. “[T]hrough the ages,” the Court wrote, “all civilized peoples have
considered the final resting place of their dead as hallowed and sacred ground.” Id. at 36.
“Hence,” the Court observed, “the Courts and legislative bodies have almost universally
recognized that the ‘property’ or ‘estate’ which one acquires when he purchases a
cemetery lot or a crypt is a ‘qualified’ property or estate.” Id. (citing Partridge v. First
Indep. Church, 39 Md. 631 (1874), and Rayner v. Nugent, 60 Md 515 (1883)). The Court
asserted that this “‘qualified’ property or estate” “is generally referred to, even though
conveyed by a deed absolute in form, as an easement, privilege, or license for the sole
purpose of sepulture as long as the property remains a cemetery.” Diffendall v.
Diffendall, 239 Md. at 36.
The Court went on to observe that “the Legislature has on many occasions
manifested its realization that the property right acquired in cemetery lots or crypts is an
51
unusual one.” Id. at 37. For example, under the statute that exempted a cemetery lot or
crypt from attachment by a creditor, the “property right” was “held by the proprietor for
‘the sole purpose of sepulture and for no other,’” and could not “be alienated by sale
without ‘the approval of the president’” of the entity that owned the cemetery. Id.
(quoting (Md. Code (1957), art. 23, § 164)).
At this point in its discussion of the legislative recognition of the “unusual” nature
of “the property right acquired in cemetery lots or crypts,” the Court made a passing
reference to BR § 5-505’s immediate statutory predecessor. In that reference, the Court
did no more than cite the statute and state, parenthetically, that it provided “for the sale of
burial grounds and the removal of interred bodies under certain circumstances.” Id. This
is far from a recognition of “the mandatory nature of the statute,” as the Coalition says.36
36
Furthermore, the statutory provision “for the removal of interred bodies under
certain circumstances” suggests that BR § 5-505 does not afford the remedy that the
Coalition seeks. For example, although the Coalition is circumspect about what ought to
be done with the property, it does not seem to want the interred remains to be removed
and reinterred elsewhere. Instead, the Coalition seems to want to have the cemetery
recognized, preserved, and protected from desecration. This is a laudable goal; however,
BR § 5-505(b)(2) envisions that the remains must be removed, because it states that the
court “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[.]” When questioned about this
difficulty at oral argument, counsel for the Coalition cited BR § 5-505(b)(1), which
empowers a court to “pass a judgment for the sale of the burial ground on the terms and
notice the court sets[.]” Counsel argued that, in empowering the court to set the “terms”
of the sale, subsection (b)(1) empowers the court to allow the interred remains to stay.
Yet, it is exceedingly doubtful that subsection (b)(1) could overcome the express
requirement in subsection (b)(2), that the court order that the sale proceeds be used, first,
to pay to disinter the remains and to reinter them elsewhere. Moreover, it is hard to see
how a court could enter a judgment passing title to the buyer free of the claims of the
52
8. Hickman ex rel. Hickman v. Carven
Both the Coalition and the circuit court put great stock in one sentence in a page-
long paragraph of dicta in Hickman ex rel. Hickman v. Carven, 366 Md. 362 (2001).
Hickman, like Diffendall, is one of the few cases that mentions BR § 5-505. Like
Diffendall, however, Hickman does not involve BR § 5-505. Instead, it involves § 5-108
of the Courts & Judicial Proceedings Article (“CJP”) of the Maryland Code (1974, 1998
Repl. Vol.), the statute of repose for actions for damages resulting from the defective and
unsafe condition of an improvement to real property.37
CJP § 5-108(a) states that, in general, “no cause of action for damages accrues and
a person may not seek contribution or indemnity for damages incurred when wrongful
death, personal injury, or injury to real or personal property resulting from the defective
and unsafe condition of an improvement to real property occurs more than 20 years after
the date the entire improvement first becomes available for its intended use.” In other
words, under CJP § 5-108(a), a person generally cannot bring an action for damages
“resulting from the defective and unsafe condition of an improvement to real property”
unless the wrongful death, personal injury, or property damage occurs less than “20 years
after the date the entire improvement first becomes available for its intended use.”
Hickman’s late husband had subdivided a farm, recorded plats, built roads and
canals, installed electrical service, and granted rights of way for other utilities and roads.
holders of the burial lots, as § 5-505(b)(3) requires, unless the interred remains were
removed.
37
The current version of the statute is unchanged.
53
Hickman ex rel. Hickman v. Carven, 366 Md. at 364. In the process, he had allegedly
removed tombstones and other evidence of a family graveyard, but had left the graves
underground. Id. at 366. He allegedly did so because he wanted to avoid the expense
associated with the disinterment of human remains and the relocation of graveyards. Id.
The Carvens purchased a lot on which the graveyard had allegedly been located.
When they learned that their house had been constructed on a graveyard (in part through
their discovery of human remains just below the surface of the earth), they brought suit,
alleging fraud. Id. at 364-67.
Hickman defended on the ground that the Carvens’ damages did not occur until
more than 20 years after her late husband had “improved” the property by creating a
subdivision, preparing lots and creating streets and utilities, and otherwise enhancing the
value of the property. Thus, Hickman argued that the statute of repose in CJP § 5-108(a)
barred the Carvens’ claims. The circuit court granted Hickman’s motion for summary
judgment. Id. at 367.
On appeal, the Carvens argued that the desecration of a graveyard cannot
constitute an “improvement” to property. Id. at 371. The Court agreed and reversed the
grant of summary judgment.
The Court began its analysis by discussing earlier cases that touched on the unique
status of cemeteries. Quoting a case that upheld a cemetery’s right to prohibit a lot owner
from installing two sculptured lions on her lot, the Court wrote:
“A place for the burial of the dead . . . has characteristics differing from
those of an ordinary tract of land. To many, it is sacred ground which
should not suffer intrusion from mundane objects.”
54
Id. (quoting Abell v. Green Mount Cemetery, 189 Md. 363, 366 (1947)).38
And quoting the Diffendall Court’s explanation for the “qualified” nature of the
property right in a cemetery lot or crypt, the Court wrote, “‘[T]hrough the ages,’”
moreover, “‘all civilized peoples have considered the final resting place of their dead as
hallowed and sacred ground.’” Id. (quoting Diffendall v. Diffendall, 239 Md. at 36).
The Court went on to observe that, “[i]n furtherance of that notion, the General
Assembly has enacted a host of laws protective of burial grounds.” Id. As examples, the
Court cited the statutes that make it a crime to remove or attempt to remove human
remains from a cemetery without the State’s Attorney’s permission (id. (citing Md. Code
(1957, 2001 Repl. Vol.), art. 27, § 265))39 and to destroy, mutilate, deface, injure, or
remove any tomb, monument, gravestone, or other similar structure in a cemetery. Id.
(citing Md. Code (1957, 2001 Repl. Vol.), art. 27, § 267).40 The court also cited a statute
38
When the Abell Court wrote that the “sacred ground . . . should not suffer
intrusion from mundane objects,” it was referring to the proprietors’ obligation “to
consider the sensibilities and feelings of other lot owners who may have different ideas of
the appropriateness of proposed monuments and structures” and their “authority to forbid
those which are clearly unseemly and improper.” Abell v. Proprietors of Green Mount
Cemetery, 189 Md. at 366. The Court enumerated some of the differences between
cemetery lots and other forms of real property—specifically, that “[p]laces of burial are
not for barter and sale” and that “[t]hey are expected to remain in the possession of the
family of those purchasing them[.]” Id. at 368. On the basis of those differences, the
Court rejected the lot owner’s contention that the restrictions on the use of her lot “should
be treated in the same manner as ordinary restrictions on the use of land and should be
held invalid.” Id. at 367-69.
39
That statute has been recodified as § 10-402(a) of the Criminal Law Article.
40
That statute has been recodified as § 10-404(a) of the Criminal Law Article.
55
that requires one to obtain a permit from the Department of Health in order to disinter a
body. Id. (citing Md. Code (1982, 1995 Repl. Vol.), § 4-215(e)(1) of the Health-General
Article).41
The Court added that the General Assembly had enacted “extensive regulations on
the use and operation of land used for burial,” id. (citing Md. Code (1992, 1998 Repl.
Vol.), §§ 5-101 through 5-1002 of the Business Regulation Article), and had “empowered
the State’s municipalities to regulate the interment of bodies and control the location and
establishment of cemeteries.” Id. (citing Md. Code (1957, 1991 Repl. Vol.), art. 23A, §
2(b)(6)).42 In addition, the General Assembly had “precluded the opening of alleys,
canals, roads, or other public thoroughfares through the property of a cemetery if that
property is used for burial.” Id. (citing Md. Code (1992, 1998 Repl. Vol.), § 5-502(a) of
the Business Regulation Article).
At this point, the Court reached BR § 5-505. Here is what the Court said:
It [meaning the General Assembly] has also provided for, and perhaps
requires, a court judgment prior to the sale of a burial ground. Section 5-
505(a) of the Business Regulations Article provides that, in an action
brought pursuant to the Maryland Rules, a court may enter a judgment for
the sale of a burial ground 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, the ground has ceased to be used for burial,
and it is desirable to dispose of the burial ground for another purpose. In
that event, 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 is authorized to
enter a judgment for the same “on the terms and notice the court sets.” Id.
41
The current version of the statute is unchanged.
42
That statute was repealed by Chapter 119 of the Laws of 2013. It appears to
have been recodified in Md. Code (2013, 2017 Repl. Vol.), § 5-209(e) of the Local
Government Article.
56
§ 5-505(b)(1). The law requires, however, that the court order “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.” Id. § 5-505(b)(2). See
also Maryland Rule 14-401. A judgment entered under § 5-505 passes title
to the burial ground free of the claims of the owners of the burial ground
and the holders of burial lots. Maryland Code, Business Regulations
Article, § 5-505(c). Absent such a judgment, it may well be that a deed to
land that constitutes a burial ground does not pass title free of such claims.
Id. at 371-72 (emphasis in original).
This is no more than general summary of how the statute works. The hedged and
equivocal statement about what the statute “perhaps requires” is far from a definitive
pronouncement about some kind of statutory mandate. And that equivocal statement is
mirrored by the Court’s closing comment that, “absent” a judgment under BR § 5-505, “it
may well be that a deed to land that constitutes a burial ground does not pass title free of
such claims.” Id. at 372 (emphasis in original). Taken in its entirety, the passage could
be read to say, in dicta, that one is “perhaps require[d]” to obtain a judgment under BR §
5-505 if one hopes to sell certain kinds of burial grounds for another purpose, because
otherwise “it may well be” that a deed will not pass title “free of the claims of the owners
of the burial ground and the holders of burial lots.” Id.43
43
As in Diffendall, moreover, the Court recognized that a court’s mandatory
obligation to 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[.]” BR § 5-505(a). As previously
stated, the requirement that the remains be removed and reburied elsewhere suggests that
BR § 5-505 is not the remedy that the Coalition seeks. See supra n.36.
57
In any event, the precise meaning of BR § 5-505 was ancillary to the Court’s
central point, which was that the extensive statutory regulation of cemeteries, of which
BR § 5-505 is but one example, supports the conclusion that the desecration of a
cemetery is not an “improvement” within the meaning of CJP § 5-108(a). Hickman ex
rel. Hickman v. Carven, 366 Md. at 372-73. Fairly read, the carefully couched dicta in
Hickman does not hold, say, or even imply that BR § 5-505 imposes a mandatory
obligation on a person who intends to sell certain types of burial grounds “for another
purpose.”44
D. “May” Does Not Mean “Must”
On the basis of the foregoing discussion, we reject the Coalition’s contention that
BR § 5-505 is an exception to a common-law prohibition against the sale of cemeteries
and, thus, that HOC must comply with BR § 5-505 if it sells parcel 175.
There was, in fact, no general common-law prohibition against the sale of
cemeteries. The common law largely ignored the subject of cemeteries: in England,
cemeteries were governed by the ecclesiastical or religious courts, not by the common-
law courts.
44
A case similar to Hickman is Rhee v. Highland Development Corp., 182 Md.
App. 516 (2008). In that case, a residential real estate developer was alleged to have
removed the headstones from an abandoned cemetery in order to conceal its existence.
Id. at 521. Even though the plaintiff-homeowners were not in privity of contract with the
developer, this Court held that the homebuyers could assert a claim for fraudulent
concealment against the developer. Id. at 539-40. In discussing the materiality of the
information that the developer concealed, this Court quoted the broad language in
Hickman (and Abell) concerning the special status of cemeteries. Id. at 540. In addition,
this Court mentioned the criminal statutes pertaining to the removal of human remains
and funerary objects. Id. at 541-42. The Rhee Court did not mention BR § 5-505.
58
The authorities cited by the Coalition do not support the contention that the
common law prohibited the sale of cemeteries. The Coalition’s lead case, Beatty v.
Kurtz, 27 U.S. (2 Pet.) 566 (1829), concerns the powers of the courts of equity—the
historical rivals of the common-law courts. Beatty v. Kurtz holds that a court of equity
will aid the grantees of a cemetery, even if the grant has not been consummated, and will
protect the grantees against trespass. Id. at 584-85. The case has nothing to do with the
common law or with a general common-law prohibition against the sale of cemeteries.
Partridge v. First Independent Church, 39 Md. 631 (1874), the first case to
interpret BR § 5-505’s statutory predecessor, strongly implies that the sale of a burial
ground can occur without compliance with the statute. In that case, the Court considered
what might occur if a burial ground were sold for purposes of “gain or convenience” or
“gain or caprice,” which would not satisfy the terms of BR § 5-505’s statutory
predecessor. Id. at 639. Because it saw fit to entertain what might occur in those
circumstances, the Court clearly did not believe that the statute prohibited such a sale.
Contrary to the Coalition’s contention, the original statutory language (since
repealed) did not state that it was “necessary” to obtain court approval for the sale of a
burial ground. Chapter 211 of the Laws of 1868; Archives of Maryland, Vol. 142, Pages
2706-07. Nor did the Court endorse that interpretation in Reed v. Stouffer, 56 Md. 236
(1881). The 1868 statute stated that a court could not enter an order allowing the ground
to pass free of certain claims unless the proponent of the sale demonstrated that the sale
was “necessary.” If the proponent of the sale failed to demonstrate that the sale was
“necessary,” a sale could still occur, but the ground would remain subject to the claims of
59
the lot holders and the owner. In those circumstances, the obstacle to the sale would not
be the failure to comply with the statute, but the buyer’s likely unwillingness to take the
property subject to the claims of the lot holders. And, in any event, since 1888, the
statute has empowered courts to enter orders passing title free of the claims of the lot
holders and the owners upon proof that it merely would be expedient or in the interest of
the parties to sell the ground, and without proof that the sale is strictly “necessary.”
Rayner v. Nugent, 60 Md 515 (1883), uncited by any of the parties, refutes the
Coalition’s contention that the common law prohibited the sale of a burial ground. In that
case, the Court upheld the validity of the sale of a cemetery that occurred in 1867, before
the enactment of BR § 5-505’s statutory predecessor. The Court could not possibly have
reached its conclusion in that case if the common law prohibited the sale of a burial
ground, as the Coalition asserts. To the contrary, the Court recognized that the statute,
“furnished additional facilities” for the sale of a burial ground—i.e., facilities in addition
to those that already existed. Id. at 520. Those “additional facilities,” if employed,
yielded the benefit of a judgment that quieted title to the ground by extinguishing the
claims of the owner and the lot holders.
The expansive language in some cases about the special status of cemeteries does
not support the Coalition’s position. Read in context, those cases, which do not interpret
or apply BR § 5-505 or its predecessors, say only that the rights of a lot holder in a
cemetery are different from, and in some cases far less extensive than, ordinary property
rights. When the Court held that a right in a burial crypt is not “property” subject to
attachment by a creditor (Diffendall v. Diffendall, 239 Md. 32, 38 (1965)), it did not hold
60
that the proponent of the sale of a burial ground for another purpose must adhere to BR §
5-505.45
Nor does the equivocal dicta in Hickman ex rel. Hickman v. Carven, 366 Md. 362
(2001), support the Coalition’s position. To say that the statute “perhaps requires [] a
court judgment” (id. at 371) is to flag an issue without deciding it. More telling, in our
view, is the Hickman Court’s concluding comment, that, “[a]bsent such a judgment, it
may well be that a deed to land that constitutes a burial ground does not pass title free of
such claims” (i.e., the claims of “the owners of the burial ground and the holders of burial
lots”). Id. at 372. (Emphasis in original.)
Because of the need for a detailed explanation of why the Coalition’s several
contentions are incorrect, we have spent more time talking about what BR § 5-505 does
not mean than about what it does mean. Nonetheless, we think that the meaning of
“may” in BR § 5-505(a) is clear.
As we said at the outset of this opinion, the statute creates a mechanism by which
certain kinds of burial grounds—specifically, those in which the ground has been
dedicated and used for burial and burial lots have been sold and deeds executed or
certificates issued to buyers of the lots—may be sold free of the claims of the lot holders
45
The Coalition cites two out-of-state cases that contain similarly broad language
about reverence for burial grounds. Obviously, neither case concerns BR § 5-505. Nor
do the cases support the Coalition’s overall position. In United States v. Sixty Acres,
More or Less, 28 F. Supp. 368, 374 (E.D. Ill. 1939), the court held that the government
could use its power of eminent domain to condemn a cemetery. In Bessemer Land &
Improvement Co. v. Jenkins, 18 So. 565 (Ala. 1895), the court reversed a money
judgment in favor of a parent who claimed that his child’s body had been wrongfully
disinterred.
61
and the owner. We base this interpretation on the plain language of the statute, which
authorizes a person to obtain a judgment extinguishing the claims of the lot holders and
the owner, but contains nothing to require a person to do so. No amount of judicial
alchemy will transmute this statutory authorization into a statutory mandate.
Although there is little direct authority about what BR § 5-505 means, we have
found one source that confirms our interpretation: in discussions about the predecessor of
Rule 14-401, which implements BR § 5-505, a member of the Court of Appeals Standing
Committee on Rules of Practice and Procedure explained that “the purpose of this Code
section and corresponding rules is to assure clear title for the purchaser.” Minutes of
Court of Appeals Standing Committee on Rules of Practice and Procedure, Sept. 14-15,
1984, at 102.46 In other words, BR § 5-505 is, as we have said, a quiet-title statute.
Under our interpretation, if the proponent of the sale does not invoke BR § 5-505,
the sale can still occur, but the buyer will take the property subject to the claims of the lot
holders. Thus, the sale can occur even without compliance with BR § 5-505 if the
46
The pertinent portion of the minutes reads as follows:
Mr. Gibson [i.e., Professor Larry S. Gibson] questioned why the rule
is tied to sale for another purpose, and does not cover any disposition for
another purpose. Ms. Ogletree [i.e., Anne C. Ogletree] responded that the
purpose of this Code section and corresponding rules is to assure clear title
for the purchaser.
62
proponent of the sale can find a buyer who is, for some reason, willing to take the burial
ground with a cloud on the title.47
As applied to this case, our interpretation means that HOC is not required to
comply with BR § 5-505 before it sells parcel 175 for another purpose. A legal
consequence of the failure to comply with BR § 5-505 is that a purchaser will take the
property subject to the claims of the lot holders. The circuit court erred in concluding
otherwise.
CONCLUSION
We do not hold that the Coalition and its members have no remedy for the
desecration of the graves of those interred in the Moses Cemetery. We hold only that
BR § 5-505 does not compel HOC to seek court approval for the sale of parcel 175. If
HOC can find a potential buyer that is willing to take the property subject to the rights of
the holders of the burial lots, HOC can sell the property without court approval, but the
lot holders’ rights will not have been extinguished by a court order.
Our decision should not be taken as a comment on the wisdom or rectitude of
HOC’s decision to sell this burial ground to an investor. It is not our province to express
a view on that subject. We note only that the commissioners of HOC are nominated by
the County Executive and approved by the County Council. The commissioners are
47
What a buyer can do to alter the property is another question. Montgomery
County imposes restrictions on the ability to develop or redevelop properties that contain
burial sites. See Montgomery County Code, Division 50.4, § 4.3(M).
63
answerable to those elected officials; and the elected officials are, in turn, answerable to
the registered voters of Montgomery County.
We end with the words of a nineteenth century jurist, who concluded that he
lacked the power to enjoin the sale of a cemetery and the removal of the interred remains:
[M]y sympathies were strongly enlisted in behalf of these complainants,
vindicating the repose of the bones of their kindred. But I cannot shut my
eyes to the clear light of the law as applicable to the case.
Windt v. German Reformed Church, 4 Sanford’s Equity Reporter 471, 476, 7 N.Y. Ch.
Ann. 1175 (1847).
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
REVERSED; COSTS TO BE PAID BY
APPELLEES.
64
Housing Opportunities Comm'n v. Adebayo