Access allowed: Court rules for Bollinger Co. cemetery group in dispute with landowner

Friday, January 12, 2007
The road to Lower Grassy Cemetery in Bollinger County was at the center of a legal dispute settled by the Missouri Court of Appeals. (Fred Lynch)

GRASSY, Mo. --

Sixteen Civil War veterans rest for all time in the Lower Grassy Creek Cemetery in western Bollinger County, their graves neatly tended along with those of relatives and others who include some of the earliest settlers of the region.

Above those veterans, another battle raged recently that pitted those who keep their graves against a family determined to gain full control over their property by stopping use of a road over their land. The dispute, which included instances when guns were displayed, was settled in late December by the Southern District of the Missouri Court of Appeals.

The victors, those who tend the cemetery and visit it to remember loved ones long gone, wonder why the fight even took place. "We said this is goofy," said James Kirkpatrick, the 77-year-old president of Lower Grassy Creek Cemetery Inc. "The only trouble is they've got more money than they've got sense."

Carol Brown of Imperial, Mo., said the court fight was a matter of maintaining her privacy. She doesn't believe the appeals court ruling is the last word. "I don't think that anything is over," she said.

The cemetery has more than 200 graves, with about half of them marked, Kirkpatrick said. One grave that is not marked is the burial spot of his brother, who died at 9 days old in the early 1930s. His great-grandfather and other family members are also buried there.

Some of the unmarked graves once had stones to announce their presence. But during an effort in the 1980s to bring the cemetery into good order, the person hired to clean it up removed many stones unknowingly, said Gene Robbins, treasurer of the cemetery.

The stones were placed by families too poor to afford tombstones, said Robbins, 73. "It was kind of the potter's field," he said.

The cemetery is a fenced graveyard with woodlands on the west side and open fields slowly turning into forest around the other sides. To reach the cemetery, a visitor must turn off Highway 34 onto the narrow graded dirt of County Road 820, and turn again onto an almost indiscernible "road" that leads along a creek. The road is little more than two tire tracks in the dirt.

About a half-mile in, the road splits, with the left fork leading further into Brown's property and the right fork running up to the graveyard.

The road leading to the fork is on Brown's property. The dispute began years ago when her father, the late Lewis Wolfangel, hired a lawyer and began sending letters to the cemetery's caretakers ordering them to stop using the access. When that didn't work, the Browns filed suit in 2005 to win control of the road.

The appeals court ruling, written by Judge Robert S. Barney, notes that the cemetery has been in use for 150 years or more. In pursuing the effort to block cemetery visitors, Brown -- who holds the land as Farm Properties Holding LLC -- "now contends that at its property line the road becomes a private road and is no longer available for use by Respondent or anyone else to access the cemetery."

In the opinion issued Dec. 21, Barney recaps the testimony of Kirkpatrick, Robbins, other landowners, Bollinger County deputy Cheryl Malone, Brown and her former husband, Craig Brown.

Craig Brown testified that the road should be closed because cemetery access is used as an excuse by other intruders, Barney noted, including hunters and people "nosing around" and that other property owners had threatened him with firearms, property owners related to the cemetery corporation.

In reply, one of those landowners, Michael Lilley, testified that on one occasion he was taking his mother to the cemetery in an all-terrain vehicle when he "was run down by the Browns and told to get off the road and [Mr. Brown] was carrying a gun."

No violence ever took place, Malone said in an interview. When she visited the area, Malone said, it was usually as a result of someone complaining that the Browns were blocking the road. "Usually they would have attempted to visit the cemetery and were told not to," she said. "I would go out and escort them and make sure the peace was kept."

In their legal pleadings filed by Cape Girardeau attorney Al Spradling III, the Browns contended that those who wished to visit the cemetery should use a 16 1/2-foot-wide strip of land that linked the cemetery to County Road 820. The land was deeded to the cemetery by a friendly landowner when the cemetery tenders asked for help to maintain access after the other road washed out in a flood.

But that strip, which crosses boggy bottoms and runs through stands of trees, could not be used as a road, replied the cemetery corporation, represented by Bollinger County Prosecuting Attorney Stephen Gray. Gray handled the case through his private law practice.

Anyway, the law is clear, Gray argued. State law requires continued access across private land to family cemeteries or private burial grounds for "any person" who wishes to visit during reasonable hours and directs the county sheriff to enforce that right.

First in a trial early last year before Cape Girardeau County Circuit Judge Benjamin Lewis and again at the Court of Appeals, the cemetery corporation won. The appeal was filed in part because no Missouri appellate court had ever ruled on the issues surrounding access to cemeteries, Spradling said. To make the case, he argued that the cemetery visitors were in improper possession of the Browns' land and should be ejected.

"We wouldn't have filed an appeal if we didn't think we would win," Spradling said. "They have had trespassers, and they have had other people on the property going for reasons other than going to the cemetery. What they wanted to do was put some sort of locked gate on it."

The 16-1/2-foot strip of land was sufficient to reach the cemetery and comply with the law giving the right of access, Spradling said. "Because there had not been any decisions covering this statute, we felt there needed to be some interpretation."

That strip of land should be the path to the cemetery, not the road on her property, Brown said. She considers the road a driveway to the home she will someday build. "We asked that they develop it and use their own road," Brown said. "Everyone has the right to privacy, and I think everyone can understand that."

With the end of the legal dispute, the cemetery corporation hopes that peace is restored and that they and the Browns can be good neighbors. They want to protect and preserve the history of the cemetery, Robbins said, but he wonders whether it will be forgotten when his generation is gone. Many of his family members, including a great-great-grandfather, a great-grandfather and an early 20th-century circuit-riding uncle named elder Dan Robbins, are all buried there.

"We've got a lot of people out here, and we are worried who is going to take care of it after we are gone," he said.

335-6611, extension 126

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