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IN THE WEST VIRGINIA SUPREME COURT OF APPEALS

CORA PHILLIPS HAIRSTON, et al.,

Plaintiffs,

v.

GENERAL PIPELINE CONST., INC., et al.,

Defendants.

and

GENERAL PIPELINE CONST., INC.,

Defendant/Third-Party Plaintiff,

v •

MOUNTAIN STATE INS. CO.,

Third-Party Defendant.

Supreme Court No. 35525

Logan Co. Civil Action No. 06-C-238 (Consolidated with 06-C-239, 06-C-240, 06-C-241 and 07-C-234) Chief Judge Roger L. Perry

42010

RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS

OF WEST VIRGINIA

RESPONSE BRIEF OF PLAINTIFFS REGARDING THE PRESENTED CERTIFIED QUESTIONS

Kevin W. Thompson, Esquire (W.Va. Bar No. 5062)

David R. Barney, Jr., Esquire (W.Va. Bar No. 7958)

Thompson Barney 31 East Second Avenue Williamson, West Virginia 25661 Telephone: (304) 235-4006 Facsimile: (304) 235-4009

/

TABLE OF CONTENTS

I. AUTHORITIES RELIED UPON ........................................................... iii-iv

II. PROCEDURAL HISTORY AND NATURE OF THE CASE .......................... 1-7

III. STATEMENT OF RELEVANT FACTS .................................................. 7-11

IV. STANDARD OF REVIEW ...................................................................... 11

V. NOTES OF ARGUMENT .................................................................. 11-34

A. CERTIFIED QUESTION NO.1

Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave? .................................................................•... 11-18

1. West Virginia Code §29-1-8a was not contemplated to preempt any common law cause of action for desecration of a cemetery or grave ........................ 12-16

2. The legislative intent to abolish or limit a common law cause of action for desecration of a cemetery or grave was not manifested plainly in West Virginia Code §29-1-8a ................................................................................................... 16-18

B. CERTIFIED QUESTION NO.2

What are the elements of a common law action for desecration of a grave, grave site, cemetery or burial ground? .............................................•........................... 18-29

1. The intent to dedicate land for cemetery purposes with acceptance and use by the public .................................................................................. 18-22

2. The defining characteristics of a cemetery ............................. 22-23

3. The defining characteristics of a common law cause of action for desecration of a cemetery or grave ................................................................. 23-29

C. CERTIFIED QUESTION NO.3

What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground? .................................................. 0 29-30

D. CERTIFIED QUESTION NO.4

Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages? ...................................... 30-32

E. CERTIFIED QUESTION NO.5

Who are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration of a grave? ......................................... 33-34

VI. CONCLUSION •.......................................................................•........ 34-35

ii

I. AUTHORITIES RELIED UPON

CASES:

Bennett v. 3 C Coal Co., 180 W.Va. 665, 379 S.E.2d 388 (1989) ............. , ............................................................... 1-3,5, 13-15,22,26,28,30-32,35 Cauefie1d v. The Fidelity & Cas. Co. of New York, 247 F. Supp. 851 (La. E.D. 1965) ........................................................................................................ 4-5,24,26 Davidson v. Reed, 111 Ill. 67 (1884) ..................................................................... 18 Ellison v. Wood & Bush Co., 152 W.Va. 506, 170 S.E.2d 321 (1969) .............................. 29 England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920) ........ 2,22-23,26,28 Gallapoo v. Wa1-Mart Stores, Inc., 197 W.Va. 172,475 S.E.2d 172 (1996) ........................ 11 Haslerig v. Watson, 205 Ga. 668, 54 S.E.2d 413 (1949) ............................................... 21 Hicks v. City of Bluefield, 86 W.Va. 367, 103 S.B. 323 (920) ...................................... 19 Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911) .................................................... 21 Humphreys, et al. v. Bennett Oil Corp., et aI., 195 La. 531, 197 So. 222 (1940) ........................................................................................... 4-5,22,24-26,31-32 In re Hillcrest Memorial Gardens, 146 W.Va. 337, 119 S.E.2d 753 (1961) ............ 22-23,28,34 In re Warden M. Lane, 51 W.Va. Op. Atty. Gen. 28 (1964) .......................................... 21 Konchesky v. S.}. Groves & Sons Co., Inc., 148 W.Va. 411, 135 S.E.2d 299 (1964) ............. 29 Mailhos v. Osbon, 201 S02d 108 (La. Ct. App. 1967) ................................................. 23 Meagher v. Driscoll, 99 Mass. 281, 96 Am.Dec. 759 ................................................... 22 McCartney v. Lester, 207 W.va. 449,533 S.E.2d 675 (2000) ........................ 18-19,22-23,27 Properties of Mount Auburn Cemetery v. Mayor & Alderman of City of Cambridge, 150 Mass. 12,22 N.E. 66 (1889) ....................................................................................... 21 Ritter.v. Couch, 71 W.Va. 221, 76 S.E. 428 (1912) ............................ 20-22,25-27,32-33,35 Roundtree v. Hutchinson, 57 Wash. 414, 107 P. 345 (1910) .......................................... 19 Ryan v. Clonch Indus., Inc., 219 W.Va. 664, 639 S.E.2d 756 (2006) ................. '" ............ 27 Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) .......................................... 16 Sherrard v. Henry, 88 W.Va. 315,106 S.E. 705 (1921) ....................................... 20-22, 31 Shiflette v. Lilly, 130 W.Va. 297,43 S.E.2d 289 (1947) .............................................. 17 Smith v. State Consol. Public Retirement Bd., 222 W.va. 345,664 S.E.2d 686 (2008) .......... 11 State v. Highland, 71 W.Va. 87, 76 S.E. 140 (1912) ................................................... 22 The Concerned Loved Ones and Lot Owners Assoc. of Beverly Hills Memorial Gardens v. Pence, 181 W.Va. 649, 383 S.E.2d 831 (1989) .................... 13-15, 18-20,22-23,27-31,33-34 Whitehair v. Highland Memory Gardens. Inc., 174 W.Va. 458,327 S.E.2d 438 (1985) ...... 30,33

CONSTITUTION:

West Virginia Constitution, Article III, Section 13 ..................................................... 16

STATUTES:

West Virginia Code §2-1-1 ................................................................................. 16 West Virginia Code §20-3A-1 ............................................................................. 17 West Virginia Code §20-3B-1. ............................................................................ 17

iii

West Virginia Code §22-3-13 .............................................................................. 17 West Virginia Code § 22-7 -1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17 West Virginia Code §23-4-2 ............................................................................... 17 West Virginia Code §29-1-8a ........................................................... 2-3,5-6,11-18,34 West Virginia Code §29-12A-l ........................................................................... 17 West Virginia Code §33-11-4a ............................................................................ 17 West Virginia Code §35-5-2 ............................................................................... 24 West Virginia Code §42-1-1.. .................................................................. 7,28,33-35 West Virginia Code § 55-7B-l ............................................................................. 17 West Virginia Code §58-5-2 ................................................................................ 11 West Virginia Code §61-8-14 ...................................................................... 13-15,24

TREATISES & OTHER AUTHORITIES:

14 Am. Jur.2d Cemeteries §14 (1964) .................................................................... 18 14 Am. Jur.2d Cemeteries §27 (2005) .................................................................... 23 Black's Law Dictionary ................................................................................. 22-23 2 Blackstone 428 ............................................................................................. 22 17 Corpus Juris, p. 1139 .................................................................................... 22 14 C.J.S., Cemeteries, § 1 ................................................................................... 23 8 Ruling Case Law p. 684 .................................................................................. 22 Webster's New International Dictionary ................................................................. 22

IV

II. PROCEDURAL HISTORY AND NATURE OF THE CASE

The initial four (4) Complaints about this matter were filed in August of 2006 and

another companion Complaint was filed in July of 2007. I There are fifteen (15) Plaintiffs

involved in this litigation and in 2007, the Circuit Court consolidated these Complaints as a

matter of judicial economy. The parties have exchanged written discovery. However, without

taking any depositions, Defendant General Pipeline Construction, Inc. (hereinafter referred to as

"General Pipeline"), filed a Motion for Summary Judgment. After reviewing the pleadings about

the Motion for Summary Judgment, the Circuit Court, on November 6, 2007, wrote counsel

about specific issues that were of concern to it. See correspondence attached and identified as

"Exhibit I" to "Supplemental Response of Plaintiffs to the Motion for Summary Judgment," filed

on March 7, 2008. Specifically, the Circuit Court inquired:

* * *

1. The Court's analysis of the law regarding claims for desecration in West Virginia focused our attention as to whether or not Plaintiffs possess the "right of burial" as it contemplated in the Bennett v. 3 C Coal Co. case. Obviously, the Plaintiffs here do not possess the right of burial "by deed," therefore, I would like you to present your positions on the Plaintiffs' possession of the right of burial by "mere license." Other cases sited [sic] within your pleadings point toward adverse possession of rights associated with a grave and constructive licenses regarding the same. Please address this issue considering both the law of West Virginia, as well as other jurisdictions, and the factual circumstances of the instant case.

2. Whether or not a plaintiff whose ancestor's grave was not directly desecrated can make a claim for desecration when direct desecration occurs to the graves of others within the cemetery, or when the cemetery as a whole or some element of the cemetery has been desecrated? Please address West Virginia law, as well as that of other jurisdictions. At some point the Court would also like to

1 The Complaints allege claims for negligence, gross negligence, public nuisance, private nuisance, tort of outrage­intentional infliction of emotional distress, desecration, violations of the West Virginia Oil and Gas Production Damage Act, trespass and punitive damages.

discuss the appropriateness of certifying this question to the West Virginia Supreme Court in light of the apparent unsettled nature of this question in West Virginia law.

3. Finally, the Court would like both parties to address West Virginia Code §29-1-8a as to its applicability and potential impact on this case.

* * *

Thereafter, a telephonic status conference was convened on these inquiries and the Circuit Court

ruled on a few of these issues. These rulings were confirmed by the Circuit Court in a December

12,2007, correspondence to counsel. See correspondence attached and identified as "Exhibit 2"

to "Supplemental Response o/Plaintiffs to the Motion/or Summary Judgment," filed on March 7,

2008. In particular, the Circuit Court held that:

* * *

First, this Court determines that legal analysis of a claim of desecration under West Virginia law would first require a determination of each Plaintiffs "right of burial." Bennett v. 3 C Coal Company. [sic], 180 W.Va. 665 (1989), provides "Whether such right of burial exists by deed or by mere license, so long as it exists and is not lawfully revoked or destroyed, it may be . . . redressed and protected in our courts." During the last telephone status conference both parties asserted that there is no dispute on the issue of "right of burial." Accordingly, the Court will find that the Defendant General Pipeline has waived any right to contest the Plaintiffs' right of burial.

I have not yet been able to fully rule on the Defendant's Motion for Summary Judgment, but have decided that a cause of action and issue of fact exists as to the two Plaintiffs whose affidavits claim their ancenstor's [sic] graves may lie within the path of the bulldozer. West Virginia law is clear that a claim of desecration exists when the grave of a loved one is desecrated. "In England v. Central Pocahontas Coal Co . ... we also recognized that near relatives have a cause of action for damages for desecration of a grave or body." (emphasis added) Bennett at 669. While strictly considered there is no right of property in a dead body, nevertheless the right to bury a corpse and preserve the remains is a legal right, which in this country is regarded as a quasi

2

right in property, the violation of which is cognizable in and may be redressed at the suit of near relatives by an action on the case against the wrongdoer." Therefore, those two plaintiffs whose affidavits claim their ancestor's graves may lie within the direct path of dozer damage create an issue of fact worthy of withstanding a motion for summary judgment and present a potential set of facts that support a cause of action for desecration under West Virginia law.

Furthermore, the Court finds that a cause of action exists in West Virginia for a plaintiff whose ancestor's grave was not directly damaged by the act of a wrongdoer, but that damage occurred either to the grave of another within the cemetery or to elements of the cemetery as a whole (such as steps, shrubbery, fences, markers, signs, etc.). The Court spent much time in considering the question of whether a plaintiff with a claim of "indirect desecration" could exist in West Virginia. The Plaintiffs take the position that such a claim does exist according to the West Virginia Supreme Court's holding in Bennett v. 3 C Coal Company which reads: "While we have not had occasion to make a specific holding on this point, it is clear from the foregoing cases and general authorities that a cause of action will lie for the unlawful desecration of a grave site even though no disturbance of the body interred therein can be shown." Id. This Court interprets this holding to create a cause of action for cases where damage is done to some direct element of a particular grave, such as the grave site, the tombstone, the earth that makes up that grave, the grave's decoration, etc. However, even if this holding was not specifically meant to create a cause of action for "indirect desecration," it evidences a desire of the West Virginia Supreme Court to expand protection to other types of damage besides damage to the corpse within a grave.

Furthermore, on the issue of "indirect desecration," the Court has reviewed West Virginia Code § 29-1-8a to glean the intent of the West Virginia Legislature on the issue of gravesites. This code section provides for both civil and criminal penalties that may be enforced by the prosecuting attorney of a given county in consultation with the director of the historic preservation society. While this code section does not create a personal cause of action for a damaged plaintiff, it does show the intent of the legislature to liberally extend protection to the historical or unmarked graves of West Virginia's ancestors that are too often forgotten.

* * *

3

It is noteworthy that the graves in the instant case are historically significant due to their old age and the particular ethnic and cultural circumstances related to the mining industry in the early nineteen-hundreds. Again, the Court does not find that the above­cited section of West Virginia statutory law creates a cause of action for an individual plaintiff in a civil desecration case, but that it is further supporting intent behind this court's interpretation of West Virginia's laws regarding desecration.

Finally, on the same issue of "indirect desecration," the Court looked to out-of-state persuasive authority that shows that such claims exist in other jurisdictions. In Cauefield [sic] v. The Fidelity and Casualty Company of New York, 247 F.Supp. 851 (District Court of L.A. 1965), forty-one relatives filed twenty-six separate suits for damages alleging desecration due to the landowner hiring a contractor to clear his land, part of which included a cemetery which had become overgrown with briars, thickets, and small trees. Although the plaintiffs in this desecration action were ultimately unsuccessful after a compete trial and extensive appellate review, the Court set forth the law for what this Court terms "indirect desecration." Pertinent holdings from the Cauefield [sic] case include:

."It was not necessary that the plaintiff in that case prove that the particular grave or graves occupied by the remains of his relatives had been desecrated in order for him to recover. It would have sufficient had he been able to prove that any of the graves in the cemetery, or any part of the cemetery had been desecrated by the defendants."

."Had the plaintiff Thomas, in the State Court suit, been able to prove that any grave, including the grave or graves of the relatives of Cauefield and Lucas, had been disturbed or desecrated, he, Thomas, could have recovered."

Additionally, another Louisiana case styled Humphreys, et al. v. Bennett Oil Corporation, et al., 195 La. 531, 197 So. 222 (L.A. 1940) involves a claim of desecration to a grave site where the property was "literally been converted into an oil field by the drilling thereon of two producing wells." Humphreys at 549.

*** Nonetheless, the Court in Humphreys held that:

"The graves and tombs of plaintiffs' relatives were not physically disturbed, but other graves in the cemetery were.

4

· .. There is no merit in the contention that plaintiffs have no right of recovery in the absence of proof that the graves of their relatives and the monuments erected by them were physically disturbed; nor is there merit in the contention that the court has no right to consider the testimony admitted to show that other graves in the cemetery were in fact destroyed. This testimony was admissible to show the desecration generally of the entire cemetery. These plaintiffs have an interest not only in the particular spots where their relatives were buried, but also a sentimental interest, at least, in the cemetery as a whole, and therefore such flagrant violation, as here shown, of the sanctity of any part of this small plot was calculated to cause mental anguish and suffering to those who have relatives buried there."

While this Court notes that the two above cases are merely persuasive authority from jurisdictions in Louisiana, it finds the law and rationale behind the law to be analgous [sic] to the instant case and fitting for a case such as the instant case in the state of West Virginia. Therefore, the Court adopts the findings of the Humphreys and Caufield [sic] cases, and, based on these two cases, along with the holding from Bennett v. 3 C Coal Company and the legislative intent gleaned from WV Code §29-1-8a, the Court FINDS that a cause of action can exists [sic] for the Plaintiffs of the instant case under West Virginia as long as each Plaintiff falls within the scope of protection extended by the definition of a cemetery.

* * *

Notwithstanding, the Circuit Court directed counsel to address the issue about how far protection

extends to claims of "indirect desecration" because a legal detennination and defmition of what

constitutes a "cemetery" and the specific facts of the instant case as applied to this concept will

determine the ultimate ruling on the Motion for Summary Judgment. See Id.

Afterward, the Circuit Court appointed a Discovery Commissioner who tendered his

report of September 22, 2008. The Discovery Commissioner determined that there were legal

issues that needed to be resolved by the Circuit Court. The parties argued their positions on

these legal issues. Then, the Circuit Court decided that the issues should be certified to the West

5

Virginia Supreme Court of Appeals. In a November 16, 2009, Order, the Circuit Court

articulated the certified questions and answered them as follows:

1. Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave?

Answer of this Court: Yes, except as to claims for the desecration of graves and related items in a publicly or privately maintained cemetery or of graves less than fifty years old.

2. What are the elements of a common law action for desecration of a grave, gave site, cemetery or burial ground?

Answer of this Court: The elements of a common law cause of action for the desecration of a grave in a publicly or privately maintained cemetery are:

1. that it is shown that a cemetery, with identifiable boundaries and limits, exists at the place alleged;

2. that it is shown that the area was dedicated to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial;

3. that it is shown that the area was identifiable as a cemetery by its appearance prior to the defendant's entry onto the area or it is shown that the defendant had prior knowledge of the existence of the cemetery;

4. that it is shown that the decedent in question is interred in the area;

5. that it is shown that the decedent in question was interred by license or right;

6. that it is shown that the plaintiff is the next of kin of the decedent in question with the right to assert a claim for desecration;

7. that it is shown that the person charged with the desecration defaced, damaged or otherwise mistreated the physical area or the contents of the cemetery in a way that a reasonable person knows will outrage the sensibilities of others;

6

3. What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground?

Answer of this Court: Nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown; damages for mental distress may be awarded; and punitive damages may be awarded if a plaintiff can prove that the defendants' conduct was willful, wanton, reckless or malicious.

4. Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages?

Answer of this Court: A cause of action for the indirect desecration of a grave site located in a publicly or privately maintained cemetery is permitted in West Virginia. The elements of such a cause of action are the same as those identified in the Answer to Question 2, above, plus:

It must be shown that the indirect desecration has, in some manner, affected the specific grave site made the subject of the claim in such a manner as to outrage the sensibilities of others.

5. Who are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration ofa grave?

Answer of this Court: The decedent's surviving spouse or, if not now living, then the now living person or persons of closest and equal degree of kinship in the order provided by West Virginia Code § 42-1-1, et seq.

These five (5) certified questions and their respective answers now are before the West Virginia

Supreme Court of Appeals.

III. STATEMENT OF RELEVANT FACTS

Far up Crystal Block Hollow, in Logan County, West Virginia lies the Crystal Block

Cemetery. See the Complaints at ~9 as cited in "Plaintiffs' response to the Motion for Summary

Judgment" filed on October 8, 2007. For many years, the tightly-knit African American

Community in Crystal Block Hollow marched up the mountain in order to honor their dead on

7

that tiny, steep, but sacred, cemetery. See Id. at ~14. Dozens of individuals are buried in the

Crystal Block Cemetery. See Id. at ~p5. The Crystal Block Cemetery has been identified as a

cemetery in the adduced death certificates of the Plaintiffs' decedents and in local funeral home

records. The fifteen (15) Plaintiffs, who are the children and grandchildren of nine (9) of the

decedents, personally maintained this cemetery on a regular basis. The cemetery is depicted in

the following map ("Exhibit I" at figure 5 to "Plaintiffs' response to the Motion for Summary

Judgment" filed October 8, 2007) which was prepared by archeologist William D. Updike.

·355m

3bt rn

8

~ /j'D $_ !!'--...,....

~......"..... o 2OfoeI

Legend .......... -.... t-- --I"/II.l(j .... -I--I ..... ...... I ...... ....

Moreover, on August 7, 2004, Plaintiff James Olbert, visited the aforementioned Crystal

Block Cemetery in order to pay respects to his deceased father, Daniel Olbert Sr. See Id. at ~16.

However, upon arriving at the scene, Mr. Olbert, observed that a road had been constructed

through the middle of the cemetery. See Id. at '17. The constructed steps at the bottom of the ,

mountain, leading to the cemetery, were destroyed and several gravestones had been bulldozed

aside. See Id. According to archeologist William D. Updike:

The bulldozed access road was examined for evidence of grave shafts and markers. Two fragments of aluminum markers were observed in the road within the southern portion of the cemetery. No evidence of grave shafts was observed in the road. Although it is possible that any grave shaft present with the access road have been obscured by erosion and subsequent use of the road as an A TV trial, their presence or absence cannot be confirmed at this time.

The southern portion of the cemetery contained evidence of displaced grave markers. One aluminum marker was identified along the western side of the access road. A marble U. S. Army Veteran's marker was identified within the drainage west of the cemetery. A granite marker was identified in two parts east of the bulldozed road. None ofthe displaced markers is associated with a grave shaft, and it remains unclear where these markers were originally placed.

9

Neither of the infonnants [Plaintiffs James Olbert and James Early] recalled the original location of the markers; however, both stated that there were no displaced markers prior to 2004. See Report of William Updike attached and identified as "Exhibit I" at Pg. 6 to "Plaintiffs' response to the Motion for Summary Judgment" filed October 8, 2007.

A bulldozer rumbled through the cemetery five (5) to nine (9) times in order to cut three (3)

separate roads. See Exhibit 2 to "Plaintiffs' response to the Motion for Summary Judgment"

filed on October 8, 2007. 2 At the time of the bulldozing, the area clearly was identifiable as a

cemetery. See Id.

The road was constructed through the cemetery in support of the pipeline installed,

owned and operated by the other Defendant, Equitable Production Company. See Id. at ~19; See

also agreement previously attached and identified as "Exhibit 3." Defendant General Pipeline

participated in the design, construction and placement of said road and said pipeline with full

knowledge of the presence of the Crystal Block Cemetery. See Id. at ~21; See also Exhibit 2.

2 This exhibit indicates that the "Buskirk Heirship" owns the subject property.

10

The Defendants, while currently aware of the subject cemetery, have done nothing to prevent or

deter the continued invasion of the cemetery by other trespassers alike using the road through the

Crystal Block Cemetery for recreational and commercial purposes. See Id. at ~22; See also

Affidavit of Clyde Wesely Baldwin, Jr., attached and identified as "Exhibit 4" to "Plaintiffs'

response to the Motion for Summary Judgmenf' filed on October 8, 2007. Furthermore, Bud

Baisden, a Crystal Block resident, witnessed the desecration and tried to stop the heinous actions.

See Id. at ~23. In a sworn affidavit, Mr. Baisden testified that a crew member, conducting the

construction operation, uttered racial slurs with respect to the cemetery. See Id.; See also

Affidavit of Bud Baisden, attached and identified as "Exhibit 5" to "Plaintiffs' response to the

Motion for Summary Judgment" filed on October 8, 2007.

IV. STANDARD OF REVIEW

In pertinent part, West Virginia Code §58-5-2 states that:

Any questions oflaw ... may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.

See also Smith v. State Consol. Public Retirement Bd., 222 W.Va. 345, 345 ft. nt. 3, 664 S.E.2d

686, 689 ft. nt. 3 (2008). The appropriate appellate standard of review for questions of law

answered and certified by a circuit court is the de novo standard. See Gallapoo v. Wal-Mart

Stores, Inc., Syl. Pt. 1,197 W.Va. 172,475 S.E.2d 172 (1996).

V. NOTES OF ARGUMENT

A. CERTIFIED QUESTION NO.1

Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or

indirect desecration of a grave?

11

1. West Virginia Code §29-1-8a was not contemplated to preempt any

common law cause of action for desecration of a cemetery or grave.

According to the legislative findings and purpose:

The Legislature finds that there is a real and growing threat to the safety and sanctity of unmarked human graves in West Virginia and the existing laws of the state do not provide equal or adequate protection for all such graves. As evident by the numerous incidents in West Virginia which have resulted in the desecration of human remains and vandalism to grave markers, there is an immediate need to protect the graves of earlier West Virginians from such desecration. Therefore, the purpose of this article is to assure that all human burials be accorded equal treatment and respect for human dignity without reference to ethnic origins, cultural backgrounds, or religious affiliations.

The Legislature also finds that those persons engaged in the scientific study or recovery of artifacts which have been acquired in accordance with the law are engaged in legitimate and worthy scientific and educational activities. Therefore, this legislation is intended to permit the appropriate pursuit of those lawful activities.

Finally, this legislation is not intended to interfere with the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property. See W.Va. Code §29-1-8a(a)(emphasis added).

In addition, West Virginia Code §29-1-8a(b)(2) & (4) defines the terms "unmarked grave" and

"grave marker" as follows:

(2) "Unmarked grave" means any grave or location where a human body or bodies have been buried or deposited for at least fifty year ... and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery association, or is located within such cemetery or in such care and is not commonly marked;

* * *

(4) "Grave marker" means any tomb, monument, stone, ornament, mound, or other item of human manufacture that is associated with a grave;

12

The identified purpose of West Virginia Code §29-l-8a is to protect "unmarked' graves

of "earlier" or historical civilizations that resided in what is now the State of West Virginia, not

preempt desecration claims by a decedent's next of kin. This statute concerns Indian burial

grounds, graves and the like which are exploited for financial gain. See W.Va. Code §29-1-

8a(c)(1). An "unmarked grave," as defined by West Virginia Code §29-1-8a(b)(2), contemplates

a grave that is not a contemporary one with a modem tombstone, but rather one that is older than

fifty (50) years-old that does not have a modem tombstone or marker. Meanwhile, the statute

defines the term "grave marker" in generic terms, but later refers to it to be of "historical

significance." See W.Va. Code §29-1-8a(c)(1). The Legislature determined that existing laws

do not provide equal or adequate protection for these types of graves. See W.Va. Code §29-1-

8a(a). As such, the statute was designed to protect the "unmarked" graves or "grave marker" of

these "earlier" West Virginians who no longer have anyone on their behalf to pursue desecration

claims. See Id. By the explicit language of this statute, the Legislature intended to put those

"unmarked" graves or "grave marker" of "earlier" West Virginians in the same situation as

graves or cemeteries that have next of kin to prosecute desecration claims. Wrongdoersare

subject to criminal punishment, including potential misdemeanor or a felony sentences and civil

fines. See W.Va. Code §29-1-8a(c)(1).

Both the Circuit Court and General Pipeline argue that West Virginia Code §29-l-8a and

the amendment to West Virginia Code §6l-8-l4 were in response to the decisions rendered in

Bennett v. 3 C Coal Company, 180 W.Va. 665, 379 S.E.2d 388 (1989) and The Concerned

Loved Ones and Lot Owners Assoc. of Beverly Hills Memorial Gardens v. Pence, 181 W.Va.

649, 383 S.E.2d 831 (1989) and preempt desecration claims where events did not occur within a

publicly or privately maintained cemetery or where graves where are more than fifty (50) years-

13

01d. 3 See "Order Certifying Questions to the Supreme Court of Appeals of West Virginia" at Pg.

4; see also "Brief of General Pipeline Construction, Inc. regarding Certified Questions

presented' at Pgs. 12-18. This argument is speculation. The decisions in Bennett and Pence

were rendered in 1989, whereas West Virginia Code §29-l-8a was enacted in 1991 and West

Virginia Code §61-8-14 was amended in 1994. Based upon this timeline, a significant amount of

time passed from the Bennett and Pence decisions until the enactment of these statutes.

Similarly, these legislative enactments were not made during the same session. The amendments

to West Virginia Code §6l-8-l4 were made three (3) years after the enactment of West Virginia

Code §29-l-8a. Thus, there is nothing temporally to suggest that these legislative enactments

were part of some type of legislative stratagem to limit a common law cause of action for

desecration of a cemetery or grave.

In addition, as aforementioned, West Virginia Code §29-l-8a was designed to create

protection for ''unmarked'' graves or "grave marker" of "earlier" West Virginians where there are

no next of kin to prosecute desecration claims. Specifically, the Legislature determined that

"[t]he existing laws of the state do not provide equal or adequate protection for all such

graves ... " and it wanted "to assure that all human burials be accorded equal treatment and

respect for human dignity without reference to ethnic origins, cultural backgrounds, or

religious affiliations .... " See W.Va. Code §29-18a(a)(emphasis added). That means that the

3 West Virginia Code §61-8-14 (Dis in tennent or displacement of dead body or part thereof; damage to cemetery or graveyard; penalties; damages in civil action) states as follows:

(a) Any person who unlawfully disinters or displaces a dead human body, or any part of a dead human body, placed or deposited in any vault, mausoleum or any temporary or pennanent burial place, is guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary or other suitable state correctional facility for a detenninate sentence of not less than two nor more than five years.

(b) (I) Any person who intentionally desecrates any cemetery, graveyard, mausoleum or other designated human burial site is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than two thousand dollars, or confined in jail not more than one year, or both fined and confined.

(2) For the purposes of this subsection, "desecrate" means defacing, damaging or otherwise physically mistreating in a way that a reasonable person knows will outrage the sensibilities of persons likely to observe or discover his or her actions.

14

West Virginia Legislature explicitly was aware of the Bennett and Pence decisions. Thereafter,

the Legislature amended West Virginia Code §61-8-14, five (5) years after the Bennett and

Pence decisions and with full knowledge of them, to expand criminal penalties to cemeteries and

displacement of grave markers or ornaments. Nothing in these legislative enactments allude to

preempting common law claims for desecration, nor do these enactments change the holdings in

Bennett and Pence. These statutes merely make the distinction between the crime of desecration

and a tort for desecration. Also, while these statutes expand the criminalization for desecration

of cemeteries or graves, they do not constrict the rights of individuals who are seeking to protect

the cemetery and graves of their loved ones. Following the reasoning of the Circuit Court and

General Pipeline, if a person were charged criminally for what would be considered a tort against

another person, then that criminal charge would preempt a tort claim by that person for the same

matter. Such reasoning is contrary to West Virginia law and this Court should reject such a

strained interpretation of West Virginia Code §29-1-8a.

An interpretation that West Virginia Code §29-1-8a preempts common law desecration

claims may very well abolish such claims for older graves. This Court should be mindful of the

last paragraph of the legislative intent:

Finally, this legislation is not intended to interfere with the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property. See W.Va. Code §29-1-8a(a).

Clearly, West Virginia Code §29-1-8a(a) imports a qualified immunity for certain actors where

they are engaged in "normal activities." The use of the term "normal activities," a term of art,

could be invoked in order to excuse heinous acts as deviancy would be defined down to the

regular course of a particular business. This Court should be careful not to insulate entities, such

15

as the natural resource extraction industry, from tort liability for heinous acts to sacred ground in

the name of normalcy.

Moreover, West Virginia Code §29-1-8a mandates that a respective prosecuting attorney

and the director of the historic preservation section control the prosecution of any such claims.

See W.Va. Code §29-1-8a(g). The civil penalties derived from such a prosecution shall be paid

to the West Virginia Endangered Historic Properties Fund and may be expended by the

commissioner of culture and history for archaeological programs at the state level. See Id. The

interests and concerns of a respective prosecuting attorney and the director of the historic

preservation section might not necessarily have the same interests or concerns as a next of kin.

Meanwhile, these graves essentially escheat to the State and loved ones forever lose any

opportunity to protect these graves. See W.Va. Code §29-1-8a(h). A defendant should have to

account for its activities in this regard, in a court of law and a plaintiff has a right to a day in

court regarding desecration claims against that defendant. Again, West Virginia Code §29-1-8a

does not preempt common law desecration claims.

2. The legislative intent to abolish or limit a common law cause of action

for desecration of a cemetery or grave was not manifested plainly in West Virginia Code

§29-1-8a.

There is nothing in the language of West Virginia Code §29-1-8a that indicates that the

Legislature intended to abolish or limit a common law cause of action for desecration of a grave

or cemetery. While the West Virginia Legislature has the constitutional authority to abolish or

limit the common law, a common law cause of action for desecration of a grave is not to be

construed as altered or changed by West Virginia Code §29-1-8a, unless the legislative intent to

do so is manifested plainly in the statute. See W.Va. Const., Art. VIII, §13; See also W.Va.

16

Code §2-l-l; See also Seagraves v. Legg, Syl. Pt. 4,147 W.Va. 331, 127 S.E.2d 605 (1962); See

also Shifflette v. Lilly, 130 W.Va. 297, 304, 43 S.E.2d 289, 293 (1947). When a statute is in

derogation of the common law, it must be construed strictly and should not be enlarged in its

operation by a construction beyond what its terms express. See Shifflette, 130 W.Va. at 304, 43

S.E.2d at 293.

There are numerous examples where the West Virginia Legislature articulated its specific

intent to preempt the common law. Those enactments include: The Workers' Compensation

statute (West Virginia Code §23-4-2), the West Virginia Skiing Responsibility Act (West

Virginia Code §20-3A-l, et seq.), the Whitewater Responsibility Act (West Virginia Code §20-

3B-l, et seq.), the Governmental Tort Claims and Insurance Reform Act (West Virginia Code

§29-l2A-l, et seq.), Unfair Trade Practices (West Virginia Code §33-1l-4a) and the Medical

Professional Liability Act (West Virginia Code §55-7B-l, et seq.). West Virginia code §29-l-8a

does not follow these examples. In addition, there are examples where the West Virginia

Legislature articulated its specific intent not to preempt the common law. Those examples

include: the West Virginia Oil and Gas Production Damage Act (West Virginia Code §22-7-l, et

seq.) and the West Virginia Surface Coal Mining and Reclamation Act (West Virginia Code §22-

3-13, et seq.). West Virginia code §29-l-8a does not follow these examples.

Nothing in the legislative intent, West Virginia Code §29-1-8a(a), indicates that the

Legislature intended to preempt common law desecration claims. Any interpretation to the

contrary is conjecture and the interpretation that West Virginia Code §29-1-8a abolishes or limits

a common law cause of action for desecration of a cemetery or grave would enlarge its operation

by a construction beyond the express terms of the statute. Since there is no plain manifestation

in the legislative intent of West Virginia Code §29-l-8a(a) to abolish or limit a common law

17

cause of action for desecration of a cemetery or grave, then this Court should not interpret West

Virginia Code §29-1-8a as preempting a plaintiffs desecration claims.

B. CERTIFIED QUESTION NO.2

What are the elements of a common law action for desecration of a grave, grave site,

cemetery or burial ground?

1. The intent to dedicate land for cemetery purposes with acceptance

and use by the public.

In The Concerned Loved Ones and Lot Owners Assoc. of Beverly Hills Memorial

Gardens v. Pence, this Court determined that:

It is well settled that land may be dedicated to the public for cemetery purposes. In the absence of a statute, no particular form or ceremony is requisite to accomplish such a dedication. The intention of the owner of the land to dedicate it for a pubic cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long­continued use of his lands for such purpose, are sufficient. The dedication may be made by grant or written instrument, but it is not necessary that any conveyance be made or that there be any person capable of taking a conveyance otherwise than in trust. See Id., 181 W.Va. 649, 654, 383 S.E.2d 831, 837 (1989)(citing 14 Am.Jur.2d Cemeteries § 14 (1964) and Davidson v. Reed, 111 Ill. 167, 169 (1884)).

Thus, the dedication of land for a public cemetery requires, in addition to the acceptance and use

by the public, an intention on the part of the owner to dedicate.4 See Id., 181 W.Va. at 655,383

S.E.2d at 837-838. An intention to dedicate cemetery land may be inferred from the conduct of

the landowner. See Id.; See also McCartney v. Lester, 207 W.Va. 449,452,533 S.E.2d 675, 678

(2000)(ho1ding that a dedication does not have to be in writing and the fact that a cemetery was

4 The Pence Court cited case law from numerous jurisdictions for the proposition.

Also, in this case, the circuit court found that Defendant General Pipeline waived any right to contest the Plaintiffs' right of burial. See "Exhibit 2" to "Supplemental Response of Plaintiffs to the Motion for Summary Judgment," filed on March 7, 2008.

18

not mentioned or reserved in a deed was of no consequence). Similarly, "[a]n implied common

law dedication arises from some act or course of conduct from which the law will imply an

intention on the part of the owner of the property to dedicate it to the public use." See Id. (citing

Roundtree v. Hutchinson, 57 Wash. 414, 415-16, 107 P. 345, 346 (1910)). In addressing the

issue of implied dedication, this Court has held that "[ t]o make out a case of dedication of private

property to public use by implication, the facts relied upon to establish it must be of such

character as clearly show the owner intended such dedication and they must be clearly and fully

proved." See Id. (citing Hicks v. City of Bluefield, Syi. Pt. 3, 86 W.Va. 367, 103 S.E. 323

(1920)). Importantly, the issue of intent to dedicate private property to public use for a cemetery

is a factual question and it must be determined by the jury. 5 See Id.; See also McCartney, Supra.

In McCartney v. Lester, a non-desecration case, this Court considered the issue whether a

family cemetery, where many non-family members were allowed to buried, had been dedicated

for public use for subsequent burials. See Id., 207 W.va. at 450,533 S.E.2d at 676-678. There

was no argument about the existence of the cemetery which had existed on the subject quarter

acre for over a century. See Id. The issue was whether other members of the public could bury

their loved ones in the cemetery. See Id. In this regard, the McCartney Court found no clear

intention on the part of the defendant's family to dedicate this cemetery to the public. See Id.,

207 W.va. at 453, 533 S.E.2d at 678. The defendants had not given up the exclusive right to

determine who can be buried in the cemetery on their property, despite continual burials by non­

members of the community. See Id. However, the McCartney Court recognized that members

of the community who have loved ones buried in the cemetery had a right to visit, decorate and

care for the existing graves and gravestones. See Id. Notwithstanding, the McCartney Court left

5 The Pence Court cited case law from numerous jurisdictions and other authorities for the proposition.

19

open the issue whether the intent to dedicate could be made or obtained through adverse

possession.

In Sherrard v. Henry, both the plaintiff and defendant laid claim to the same burial plot

for their respective loved ones. See Id., 88 W.Va. 315, 316-17,106 S.B. 705,705-6 (1921). The

focus of the case concerned whether a burial plot could be obtained by adverse possession. See

Id., 88 W.Va. at 320, 106 S.E. at 706-7. The Sherrard Court determined that a fence was not

necessary in order to acquire a burial lot by adverse possession. See Id. at Syl. Pt. 4. Rather, if

the limits of a burial plot clearly are defined by improvements on the plot and by a slight barrier

or ridge extending all the way around the same and so maintained for the period of ten (10)

years, clearly indicating the extent and nature of the claim, it will be sufficient to confer the right

by adverse possession. See Id. at Syl. Pt. 3. Given the approach taken in Sherrard, the analysis

of a "dedication" logically should encompass or extend to consideration whether the implied

dedication occurred by adverse possession. As indicated in Pence, "no particular form or

ceremony is requisite to accomplish such a dedication." See Id., 181 W.Va. at 654,383 S.E.2d at

837. If individuals, acting in good faith, bury their loved ones at a particular location for a

period of more than ten (10) years and make improvements in the area, consistent with a

cemetery, then that should be sufficient that there was an implied dedication through adverse

possession.

Furthermore, once land has been dedicated to cemetery purposes, the next of kin of those

buried in the cemetery, as well as those who own land for burial in the cemetery, have a cause of

action to prevent or recover damages resulting from the unlawful desecration of such cemetery.

See Ritter v. Couch, 71 W.Va. 221, 228, 76 S.E. 428,430 (1912); See also Pence at Syl. Pt. 2. In

Ritter v. Couch, this Court discussed the unique status of cemeteries in society, as well as their

20

necessity.6 See Id., 71 W.va. 221,76 S.B. 428 (1912). The facts in Ritter concerned an attempt

by a municipal corporation to sell a municipally-owned public cemetery. Relatives of those

buried at the municipally-owned public cemetery brought an action to void the sale. The trial

court voided the sale and the Ritter Court affirmed the trial court's decree, concluding that:

[w]hen once property has been dedicated for a special purpose, as for a burial ground, or where a city has dedicated it for that purpose, and persons have acted upon the faith of such dedication by burying their loved ones there, the city cannot devote the property to any other purpose. See Id., 71 W.Va. at 228,76 S.B. at 431; See also Haslerig v. Watson, 205 Ga. 668, 683, 54 S.E.2d 413,424 (1949); Proprietors of Mount Auburn Cemetery v. Mayor & Aldermen of City of Cambridge, 150 Mass. 12, 16,22 N.E. 66, 68 (1889); Hines v. State, 126 Tenn. 1, 4-5, 149 S.W. 1058, 1059 (1911).

The Ritter Court recognized that an action in equity lies for desecration of a grave which

has been dedicated for cemetery purposes. See Id., 71 W.va. at 228, 76 S.E. at 430. As such,

under West Virginia law, "[e]quity has jurisdiction to restrain the removal of or interference with

the remains of the dead rightfully buried in a cemetery." See Sherrard at Syl. Pt. 1. This Court

has determined that a person who acquires a cemetery lot has some interest therein. See Id. That

person does not acquire the fee in the land, rather the interest is more in the nature of a perpetual

easement. See Id., 88 W.va. at 320, 106 S.B. at 707. This "perpetual easement" gives rise to an

action for damages resulting from desecration of a grave or a body. See Id. While there is no

right of property in a dead body, nevertheless the right to bury a corpse and preserve the

remains is a legal right which in this country is regarded as a quasi right in property, the

6 With respect to private or family cemeteries, where only family members and friends of the family are buried, the West Virginia Attorney General, in the opinion of In re Warden M. Lane, determined that:

Usually, the graves in family cemeteries are not purchased; permission to use the cemetery is allowed merely by reason of the fact that the deceased or his family are friends or relatives of the owner of the land upon which the cemetery is located and reside in the general vicinity of the cemetery. These private type family cemeteries had their beginning as a matter of practical necessity. Where public cemeteries have not been established in an area, it is necessary for a landowner to set aside a small portion of his land, usually an acre or less, to be used by the members of his family and by persons residing in the area as a burial ground. See Id., 51 W.Va. Op. Atty. Gen. 28 (1964).

21

violation of which is cognizable in and may be redressed at the suit of near relatives by an action

on the case against the wrongdoers. 7 See England v. Central Pocahontas Coal Co., Syl. Pt. 1,86

W.Va. 575, 104 S.E. 46 (1920)(emphasis added); See also Bennett, 180 W.Va. at 669, 379

S.E.2d at 392. As aforementioned, this "perpetual easement" or quasi right in property may be

acquired through adverse possession. See Sherrard at Syl. Pt. 3. Again, the issue of intent to

dedicate private property to public use for a cemetery is a factual question and it must be

determined by the jury. See Pence, 181 W.Va. at 655, 383 S.E.2d at 838; See also McCartney,

Supra.

2. The defining characteristics of a cemetery.

By universal acceptance, the term "cemetery" connotes real estate only as distinguished

from personal property. See In re Hillcrest Memorial Gardens, 146 W.Va. 337, 344, 119 S.E.2d

753,759 (1961). The term "cemetery" is derived from a Greek term which translates "to sleep"

and denotes a "sleeping place." See Humphreys, et al. v. Bennett Oil Corp., et al., 195 La. 531,

552, 197 So. 222, 229 (1940). Black's Law Dictionary defines "cemetery" as "[a] graveyard;

burial ground .. " Place or area set apart for interment of the dead." See Id. (4th ed. 1951).

Similarly, Webster's New International Dictionary defines this term as "[a] place or ground set

apart for the burial of the dead." See Id. (2d ed. 1943). In the decision of In re Hillcrest

Memorial Gardens, this Court was called upon to determine what constituted a "cemetery" in

7 The England Court reasoned that:

"It is conceded that at the common law there was no right of property in a dead body, and that once interred it became a part of the soil where laid; and in England the protection of sepulcher was generally controlled by the Ecclesiastical law. 2 Blackstone, 428; Meagher v. Driscoll,99 Mass. 281, 96 Am.Dec. 759. In this country we have no Ecclesiastical law controlling the subject. The right however to bury a corpse and to preserve the remains is a legal right which the courts of this country recognize and protect; and this right is regarded as a quasi right of property. 17 Corpus Juris, p. 1139; 8 Ruling Case Law, p. 684; State v. Highland, 71 W.Va. 87,76 S.E.140. And the right, according to the authorities in this country, exists in near relatives, and is cognizable in courts of law as well as in equity, and so long as the right of interment exists it may be vindicated by them in such courts." See Id., 86 W.Va. at 577-78, 104 S.E. at 47; See also Sherrard, 88 W.Va. at 319-20,106 S.E. at 707; Ritter, 71 W.Va. at 226-28,76 S.E. at 430; State v. Highland, 71 W.Va. 87, 89-90,76 S.E. 140,141 (1912); Bennett 180 W.Va. at 670, ft. nt. 4,379 S.E.2d at 392, ft. nt. 4.

22

tenns of a tax case. See Id., Supra. In determining what constituted a "cemetery," the Court

relied upon the definition found in Corpus Juris Secundum, a well-respected legal encyclopedia.

See Id., Supra. According to the In re Hillcrest Memorial Gardens Court:

A cemetery is a place where the dead bodies of human beings are buried; it is a place or area of ground set apart for the burial of the dead, either by public authority or private enterprise. The tenn is synonymous with graveyard, burial ground, and place of burial, and it includes not only lots for depositing the bodies of the dead, but also such avenues, walks, and grounds as may be necessary for its use or for ornamental purposes. The term 'graveyard' is also defined as a place for the burial of the dead. See Id., Syl. Pt. 3, 146 W.Va. 337, 344-5, 119 S.E.2d 753,760-1 (l96l)(citing 14 C.J.S., Cemeteries, §l, Pg. 63).

This definition again was utilized by this Court in Pence which was not a tax case. See Id., 181

W.Va. at 654, 383 S.E.2d at 836. Thus, this Court has defined a cemetery in broad tenn which

not only encompasses graves, but also the surrounding area. In addition, a cemetery does not

lose its character when further burials are prohibited. See 14 Am. Jur. 2d Cemeteries §27 (2005).

In England v. Central Pocahontas Coal Co., this Court implied that the boundaries of a cemetery

were a question of fact for jury detennination by discussing the trial evidence in light of

boundary dispute cases. See Id., 86 W.Va. at 579-580, 104 S.E. at 47. Given the broad

definition of a cemetery previously adopted by this Court and its position on intent to dedicate,

the issue whether or not an area is a cemetery should be a factual question for jury determination.

See Pence, 181 W.Va. at 655, 383 S.E.2d at 838; See also McCartney, Supra.

3. The defining characteristics of a common law cause of action for

desecration of a cemetery or grave.

A "desecration," generally has been defined as a violation of the sanctity of a place or a

profanation thereof. See Pence, 181 W.Va. at 654, ft. nt. 5, 383 S.E.2d at 836, ft. nt. 5(citing

Mailhos v. Osbon, 201 So.2d 108, 110 (La.Ct.App.1967); "Desecrate," Black's Law Dictionary

23

401 (5th ed. 1979)). Moreover, there is an analogous definition of the term "desecration" in West

Virginia Code §61-8-14(b )(2), the criminal statue relating to the disinterment or displacement of

dead body or part thereof and damage to a cemetery or graveyard which defines the term as

follows:

For the purposes of this subsection, "desecrate" means defacing, damaging or otherwise physically mistreating in a way that a reasonable person knows will outrage the sensibilities of persons likely to observe or discover his or her actions.

Additionally, there is another analogous definition of the term "desecration" in West

Virginia Code §35-5-2 which pertains to the sale of part of a cemetery. In pertinent part, West

Virginia Code §35-5-2 states:

[N]o desecration shall be made of any grave or monument, or any of the walks, drives, trees, or shrubbery within the enclosure of any burial grounds; nor shall any shaft or entry be made within the enclosure of such burial grounds, or any building be erected therein for any purpose whatever other than cemetery purposes.

Not only does this statute embody the inclusive concept of a "cemetery," but it also embodies

what constitutes a cause of action for "desecration" of a cemetery or grave. In particular, this

statute prohibits any "entry" or "building" being made in or through a cemetery which is not for

a cemetery purpose. While West Virginia case law acknowledges the existence of a common

law claim for desecration, no West Virginia decision explains or discusses the elements

necessary to establish a common law desecration claim. However, case law from other

jurisdictions is illustrative on this issue.

In the Louisiana case of Humphreys, et al. v. Bennett Oil Corp., et al., the Louisiana

Supreme Court held that if a plaintiff can prove that any grave in a cemetery had been disturbed

or desecrated, then that plaintiff had a compensable desecration claim, regardless whether there

was disturbance to the grave of a plaintiff's loved one. See Id., Supra; See also Cauefield v. The

24

Fidelity & Cas. Co. of New York, 247 F.Supp. 851, 854 (La. E.D. 1965) aff'd 378 F.2d 876 (5th

Cir. 1967). The facts in Humphreys were that a one-acre cemetery was converted into an oil

field by the drilling of two (2) producing wells. See Id., 195 La. at 549-550, 197 So. 228. The

two (2) pipelines, for the conveyance of slush, were elevated about four (4) feet above the

ground, but not over the tomb of the plaintiffs decedent. See Id. Shrubbery and flowers planted

near the graves were trampled under foot and destroyed. See Id. There was mud and slush over

some portion of the cemetery plot which made access to the grave unpleasant and inconvenient.

See Id. The Humphreys Court determined that this use of a consecrated ground transformed it

into an industrial site to be exploited for material gain. See Id. The cemetery plot was divested

of its sacred character, thereby violating and profaning the sanctity of the graves. See Id. Also,

this use was found to be a desecration calculated to wound the feelings of the living that had

relatives buried in the cemetery and it was a compensable tort. See Id.

stated:

The rationale of the Louisiana Supreme Court for this decision was that:

There is a sentiment deeply seated in the human heart that a cemetery, or 'sleeping place' of the dead, is sacred ground. Instinctively we resent any rude invasion of, or approach to, ground set apart as a resting place for the dead. Deference to this sentiment and respect for the feelings of those who have deposited the remains of their relatives in burial fields usual restrain others from violating the sanctity of such places. A ruthless desecration of any cemetery shocks the moral sense of mankind. See Id., 195 La. at 552, 197 So. at 229.

The Humphreys decision is strikingly similar to the decision in Ritter where this Court

If relatives of blood may not defend the graves of their departed[,] who may? Always the human heart has rebelled against the invasion of the cemetery precincts; always has the human mind contemplated the grave as the last and enduring resting place after the struggles and sorrows of this world. See Ritter v. Couch, 71 W.Va. at 227, 76 S.E. at 430.

25

These powerful words serve as a reminder about the sensitively in addressing the character of the

cemetery and its place in human nature. This statement of the law is as relevant now as when it

was written ninety-eight (98) years ago. These cases point to the conclusion that if there is a

disturbance or desecration of a cemetery, regardless whether there is disturbance of a particular

grave, then there is a right to recovery for each of the decedent's loved ones.

The decision articulated in Humphreys is a bright-line rule that this Court should adopt in

explaining or defining a common law claim of desecration. This standard leaves little or no

room for varying interpretation about what constitutes desecration of a cemetery. Likewise, this

decision is consistent with the prior decisions of this Court. As discussed in Ritter and its

progeny, the recognized principle for a desecration claim is to protect loved one's graves and

there is no better method than with this standard. While the prior decisions of this Court have

not discussed the elements of the tort itself, they have implied that the standard is akin to the one

outlined in Humphreys. In England, in answering certified questions that acknowledged and

approved a claim for desecration of a cemetery or grave, this Court did not express a rigid

standard for the tort. See Id., 86 W.Va. at 575-579, 104 S.E. at 46-47. Later, in Bennett, this

Court approved of desecration claims where there was no disturbance to a particular grave. See

Id. at Syl. Pt. 2. Adopting this standard would produce predictable and consistent results in its

application. Notwithstanding, this standard is not a guarantee that a plaintiff will recover in such

a claim. In fact, in the Humphreys case and the subsequent Cauefield v. The Fidelity & Cas. Co.

of New York case, none of the plaintiffs had successful suits. See Id., Supra. As such, a plaintiff

should need only prove that any grave in a cemetery had been disturbed or desecrated by a

tortfeasor in order to establish a compensable claim for desecration of a cemetery. Since this

analysis requires a factual investigation to determine whether activities would constitute a

26

"disturbance" or "desecration," the issue whether or not those activities are a "disturbance" or

"desecration" should be factual questions for jury determination. See Pence, 181 W.Va. at 655,

383 S.E.2d at 837-838; See also McCartney, Supra.

Both the Circuit Court and General Pipeline assert that notice of the cemetery or grave

and the intent of a tortfeasor are elements to a common law desecration claim. See "Order

Certifying Questions to the Supreme Court of Appeals of West Virginia" at Pg. 7-13; see also

"Brief of General Pipeline Construction, Inc. regarding Certified Questions presented' at Pgs.

24-26. That should not be the case. While other jurisdictions have required a plaintiff to

establish notice of the cemetery or grave and the intent of the tortfeasor as an element of the tort,

the better rule is not to include them as elements of the claim. A defendant, such as one in the

natural resource extraction industry, would define deviancy down to the regular course of

business. In such a situation, a defendant simply will ignore the existence of a cemetery and

seek to avoid liability in a desecration claim by claiming a lack of notice or lack of intent. Such

a situation is unconscionable. See generally Ryan v. Clonch Indus., Inc., 219 W.Va. 664, 674,

639 S.E.2d 756, 766 (2006)(finding an unconscionable result where the employer ignored

statutory mandates and then sought to deny liability, in a deliberate intent claim, due to lack of

subjective knowledge). A plaintiff should not be burdened with establishing notice of the

cemetery or grave or the intent of the tortfeasor in a desecration claim. Furthermore, West

Virginia case law has not suggested, even in dicta, that notice of the cemetery or grave or the

intent of the defendant are required elements of such a claim.

In Ritter, this Court held that such a suit may be maintained because of the "unlawful

desecration" of a cemetery. See Id., 71 W.Va. at 228, 76 S.E. 430; see also Pence at Syl. Pt. 2.

There was no discussion or mention about requiring notice of the cemetery or grave or the intent

27

of the defendant. See Id. The England Court, in analyzing the existence of a common law

desecration claim, did not require notice of the cemetery or a grave or the intent ofthe defendant

as elements of the claim. See Id., 86 W.Va. at 575-580, 104 S.E. at 46-47. Of course, there was

no issue about notice and intent in the England case because the facts were that the defendant

callously disinterred the bodies of the plaintiffs' loved ones and interred them in an unknown

location. See Id. Similarly, in Bennett, the case concerned whether the defendant's mining

operations caused subsidence damage to the graves of the plaintiffs' relatives. See Id., 180

W.Va. at 667-668, 379 S.E.2d at 391-392. Again, this Court did not discuss or reference notice

of the cemetery or grave or the defendant's intent to desecrate the graves or the cemetery as

elements to the claim. See Id. Certainly, notice of the cemetery or grave and the intent of a

defendant are suitable defenses to a desecration claim, but they should not be a bar to

establishing such a claim. Thus, this Court should not require a plaintiff to establish notice ofthe

cemetery or grave or the intent ofthe defendant in a desecration claim.

Consequently, the Plaintiffs respectfully request that the elements for a common law

desecration be as follows:

1. That there be an intent to dedicate land for cemetery purposes, whether through

direct, implied or adverse possession means, with acceptance and use by the public;

2. That there be a cemetery as defined by this Court in In re Hillcrest Memorial

Gardens and Pence;

3. That a decedent ofthe next of kin is buried within the subject cemetery;

4. That the next of kin be identified in accordance with West Virginia Code §42-1-1,

et seq.;

5. That a defendant disturbed or desecrated any grave in the subject cemetery;

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6. That a suit for damages may be maintained by the next of kin for desecrating or

disturbing a cemetery, regardless whether the bodies interred therein were not disturbed;

7. That the next of kin plaintiff suffered damages, as outlined in Subsection C

(Certified Question No.3) of this brief, proximately caused by the defendant's disturbance or

desecration of the subject cemetery;

8. That each of the above referenced elements of this claim are factual questions for

jury determination.

C. CERTIFIED QUESTION NO.3

What are the recoverable damages in a common law action for desecration of a

grave, grave site, cemetery or burial ground?

The damages that a plaintiff would be entitled to in a common law action for desecration

of a grave, grave site, cemetery, burial ground or surrounding area will depend upon the nature

of the harmful acts as the evidence at trial demonstrates. 8 See Pence 181 W.Va. at 656, 383

S.E.2d at 838. In this type of action, nominal damages, at least, are awardable and compensatory

damages may be recovered if there is actual damage. See Id. Punitive damages may be

recovered in this type of case if a plaintiff can prove that a defendant's conduct was willful,

wanton, reckless, or malicious. "In order to secure punitive damages, a defendant must be

8 Additionally, an action for trespass may be maintained by one who owns the land for burial or has a burial easement therein. See Pence 181 W.Va. at 654,383 S.E.2d at 836. A "trespass" is defined as an entry on another person's property without lawful authority and doing some damage, however inconsiderable, to that property. A person may commit a trespass by physically entering upon another's land or by causing a thing or third person to enter the land. Liability for trespass to real property exists only where there is an intentional intrusion, negligence or some extra hazardous activity on the part of the alleged wrongdoer. See Ellison v. Wood & Bush Co., 152 W.Va. 506, 170 S.E.2d 321 (1969). The general rule governing the amount of damages properly recoverable in a trespass case is to determine the difference in the fair market value of the land before the damage to the property was caused and the fair market value thereof as diminished by the damage proximately caused by a tortfeasor's activities. See Konchesky v. S. J. Groves and Sons Co., Inc., Syi. Pt. 3, 148 W.Va. 411, 135 S.E.2d 299 (1964). Also, a plaintiff may have an ownership interest in the land which would require the restoration of the land, including the minerals. See Pence, 181 W.Va. at 656, ft. nt. 6, 383 S.E.2d at 838, ft. nt. 6.

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shown to have engaged in a willful, wanton, reckless, or malicious act." See Pence, Supra (citing

Bennett at Syl. Pt. 5).

Furthermore, the next of kin may recover damages for mental distress for the disturbance

or desecration of a relative's grave. See Bennett at Syl. Pt. 3; See also Pence, Supra. Mental

distress may be recovered for an unlawful disturbance of a grave site when there is no physical

disturbance of the body. See Bennett, 180 W.Va. at 670-671, 379 S.E.2d at 393-394 (extending

the rule in Whitehair to desecration cases)9; See also Whitehair v. Highland Memory Gardens,

Inc., Syl. Pt. 3, 174 W.Va. 458, 327 S.E.2d 438 (l985)(A cause of action for negligent or

intentional mishandling of a dead body does not require a showing of physical Injury or

pecuniary loss). Mental anguish is a sufficient basis for recovery of damages. See rd.

D. CERTIFIED QUESTION NO.4

Does West Virginia recognize a common law cause of action for indirect desecration

of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a

cause of action and what are the recoverable damages?

The Circuit Court has contrived and applied the term "indirect desecration," a term not

found in West Virginia law or elsewhere, to this case. The concept of "indirect desecration" has

a pejorative connotation and it ignores the proverbial "elephant in the room." A "desecration" is

a "desecration," regardless of the situation. There should be no distinction to be made about the

type or degree of desecration. The common law cause of action for desecration concerns the

invasion of a sacred place, regardless of the disturbance to a particular grave. This Court should

reject any invitation to undermine or constrict a tort claim for desecration, especially when prior

decisions of this Court have not done so and the West Virginia Legislature has not done so. To

9 In fact, the Bennett Court established a mental distress exception to the tort of outrage arising from disturbance or desecration of dead bodies and grave sites.

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the contrary, this Court and the West Virginia Legislature have expanded the rights of loved ones

and increased the criminality with respect to desecration of cemeteries and graves. This Court's

approval of the concept of "indirect desecration" would undermine or overturn about 100 years

of West Virginia legal precedent. Notwithstanding, if the Court so chooses to accept this

concept, there would still be a cause of action under West Virginia law.

As aforementioned, "[ e ]quity has jurisdiction to restrain the removal of or interference

with the remains of the dead rightfully buried in a cemetery." See Sherrard at Syl. Pt. 1

(emphasis added). This Court, in syllabus point 2 of Bennett, recognized that a suit for damages

may be maintained by the next of kin for disturbing a cemetery even though the bodies interred

therein were not disturbed. See Id. As such, this Court previously approved of desecration

claims where there was no disturbance to a particular grave. In Bennett, this Court addressed

the adverse effects of mining operations on grave sites. See Id., Supra; See also Pence, 181

W.Va. at 653 ft. nt. 4, 383 S.E.2d at 836 ft. nt. 4. The facts in Bennett were that the mining

operations of the defendant caused subsidence cracks and holes in the graves of the plaintiffs

relatives. See Id., 180 W.Va. at 667-668, 379 S.E.2d at 391-392. While these facts concerned

the actual disturbance of the graves of the plaintiff s relatives, the Bennett Court extended a

claim for desecration to include situation where there was no disturbance of particular grave. In

reaching this conclusion, the Bennett Court relied on case law from other jurisdictions and other

authorities.

Similarly, in the Humphreys case, a case not cited by the Bennett Court, the Louisiana

Supreme Court recognized that a desecration claim could be maintained where there was no

disturbance to the graves and tombs of the plaintiffs' relatives. See Id., Supra. Specifically, with

respect to the undisturbed graves and tombs, the Humphreys Court held that:

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"The graves and tombs of plaintiffs' relatives were not physically disturbed, but other graves in the cemetery were. . .. There is no merit in the contention that plaintiff have no right of recovery in the absence of proof that the graves of their relatives and the monuments erected by them were physically disturbed; nor is there merit in the contention that the court has no right to consider the testimony admitted to show that other graves in the cemetery were in fact destroyed. This testimony was admissible to show the desecration generally of the entire cemetery. These plaintiffs have an interest no only in the particular spots where their relatives were buried, but also a sentimental interest, at least, in the cemetery as a whole, and therefore such flagrant violation, as here shown, of the sanctity of any part of this small plot was calculated to cause mental anguish and suffering to those who have relatives buried

there." See Id., 195 La. at 550-551, 197 So. at 228.

The Humphreys Court did not make a distinction between "direct" and "indirect" desecration.

The issue was whether there was a desecration and the Humphreys Court indeed found that such

a claim could be maintained despite the lack of disturbance to particular graves of the plaintiffs'

loved ones. The decision in Humphreys is the same decision reached by this Court in syllabus

point 2 of Bennett. There is no reason for this Court to deviate from the precedent established in

Ritter and its progeny, including Bennett. Since this Court has recognized that a desecration

claim may be maintained where there is no disturbance of a particular grave, it should not make a

distinction between the two (2) situations. A common law desecration claim encompasses both

of these situations because it is a matter of the invasion of a sacred place. Notwithstanding, if

this Court should choose to make such a distinction, then the elements should be the same as

those outlined in Subsection B (Certified Question No.2) of this brief.

The damages that a plaintiff would be entitled to in a common law action for what could

be described as "indirect" desecration of a grave, grave site, cemetery, burial ground or

surrounding area would be the same as those outlined in Subsection C (Certified Question No.3)

of this brief.

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E. CERTIFIED QUESTION NO.5

Who are the "next of kin" who possess the right to recover in a common law cause

of action for direct or indirect desecration of a grave?

West Virginia law clearly states that a cause of action for desecration of a cemetery lies

with the "next of kin" of a decedent or a person with an ownership interest in the property. See

Whitehair, 174 W.Va. at 463, 327 S.E.2d at 444; See also Pence, Supra at Syl. Pt. 2. This cause

of action belongs to the party with the right to possession of the body. See Id. In this regard, the

"next of kin" are to be determined in the context of intestate succession, being West Virginia

Code §42-l-l, et seq. See Id. As the Court in Ritter stated, "[i]f relatives of blood may not

defend the graves of their departed[,] who may?" See rd., 71 W.Va. at 227, 76 S.E. at

430(emphasis added).

The decision in Ritter and its progeny clearly contemplated that there would be multiple

"next of kin" plaintiffs due to the sensitive nature of a cemetery, the final resting place and its

place in our society. None of these cases limited the "next of kin" to only one plaintiff because,

within the context of West Virginia Code §42-l-l, et seq., more than one person could have a

right to possess the decedent's body. This statute identifies those individuals who may serve as a

next of kin plaintiff. Limiting a desecration to one plaintiff is unjust because the desecration or

disturbance of a cemetery affects the entire family, not just one person. The same family

members who mourn the loss of the decedent would also grieve the desecration or disturbance of

their decedent's grave. Thus, more than one plaintiff should be allowed as the "next of kin" in

desecration claims. Consequently, each of the decedent's relatives, the "next of kin" who would

have a right to possess the decedent's body and who are established in accordance with West

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Virginia Code §42-1-1, et seq., should be the rightful plaintiffs in common law desecration

claims.

VI. CONCLUSION

With respect to the first Certified Question, West Virginia Code §29-1-8a was not

contemplated to preempt any common law cause of action for desecration of a cemetery or

grave. The legislative intent to abolish or limit a common law cause of action for desecration of

a cemetery or grave was not manifested plainly in West Virginia Code §29-1-8a.

With respect to the second Certified Question, the elements for a common law

desecration of a cemetery or grave should be: I) that there be an intent to dedicate land for

cemetery purposes, whether through direct, implied or adverse possession means, with

acceptance and use by the public; 2) that there be a cemetery as defined by this Court in In re

Hillcrest Memorial Gardens and Pence; 3) that a decedent of the next of kin is buried within the

subject cemetery; 4) that the next of kin be identified in accordance with West Virginia Code

§42-1-1, et seq.; 5) that a defendant disturbed or desecrated any grave in the subject cemetery; 6)

that a suit for damages may be maintained by the next of kin for desecrating or disturbing a

cemetery, regardless whether the bodies interred therein were not disturbed and 7) that the next

of kin plaintiff suffered damages, as outlined in Subsection C (Certified Question No.3) of this

brief, proximately caused by the defendant's disturbance or desecration of the subject cemetery.

Each of the above referenced elements of this claim are factual questions for jury determination.

With respect to the third Certified Question, the recoverable damages in a common law

action for desecration of a grave, grave site, cemetery, burial ground or surrounding area are

nominal damages, compensatory damages, damages for mental distress, damages for trespass

and/or punitive damages.

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With respect to the fourth Certified Question, this Court should not make any distinction

in the type or degree of desecration by adopting the concept of "indirect desecration." However,

if this Court so chooses to adopt this concept, then there would still be a cause of action under

West Virginia law based upon the holding in Ritter and its progeny, including syllabus point 2 of

Bennett. The elements of this claim would be the same as those set forth in Subsection B

(Certified Question No.2) of this brief and the recoverable damages are the same as those as set

forth in Subsection C (Certified Question No.3) of this brief.

Lastly, with respect to the fifth Certified Question, the "next of kin" who possess the

right to recover in a common law cause of action for desecration of a cemetery or a grave are

determined within the context of intestate succession, being West Virginia Code §42-1-1. Each

of the decedent's relatives, the "next of kin" who would have a right to possess the decedent's

body and who are established in accordance with West Virginia Code §42-1-1, et seq., should be

the rightful plaintiffs in common law desecration claims.

WHEREFORE, for the aforementioned reasons, Plaintiffs respectfully request that this

Honorable Court to adopt their answers to the Certified Questions, enter an Order effectuating

the decision along with any other relief deemed necessary and proper by the Court.

Dated: June 4, 2010 PLAINTIFFS, By counsel

~ Kevin W. Thompson, Esquire (W.Va. BarNo. 5062)

David R. Barney, Jr., Esquire (W.Va. BarNo. 7958)

Thompson Barney 31 East Second Avenue Williamson, West Virginia 25661 Telephone: (304) 235- 4006 Facsimile: (304) 235-4009

35

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS

CORA PHILLIPS HAIRSTON, et al.,

Plaintiffs,

v.

GENERAL PIPELINE CONST., INC., et al.,

Defendants.

and

GENERAL PIPELINE CONST., INC.,

Defendant/Third-Party Plaintiff,

v.

MOUNTAIN STATE INS. CO.,

Third-Party Defendant.

Supreme Court No. 35525

Logan Co. Civil Action No. 06-C-238 (Consolidated with 06-C-239, 06-C-240, 06-C-241 and 07-C-234) Chief Judge Roger L. Perry

CERTIFICATE OF SERVICE

The undersigned counsel for Plaintiffs hereby certifies that on June 4, 2010, the foregoing "Response Brief of Plaintiffs regarding the presented Certified Questions" was served upon counsel of record by hand delivery as follows:

Brian R. Swiger, Esquire Suzanne M. Persinger, Esquire Jackson Kelly, PLLC Post Office Box 533 Charleston, West Virginia 25322-0533 Counsel for Equitable Prod. Co.

Daniel R. Schuda, Esquire Lynnette Simon Marshall, Esquire Schuda &Associates, PLLC 232 Capitol Street, Suite 200 Charleston, West Virginia 25301 Counsel for Gen. Pipeline Const., Inc.

Kevin A. Nelson, Esquire / Patrick T. White, Esquire Huddleston Bolen, LLP Post Office Box 3786 Charleston, West Virginia 25337-3786 Counsel for Mountain State Ins. Co.

36

PLAINTIFFS, By counsel

r(-;:' Kevin W. Thompson, Esquire (W.Va. Bar No. 5062)

David R. Barney, Jr., Esquire (W.Va. BarNo. 7958)

Thompson Barney 31 East Second Avenue Williamson, West Virginia 25661 Telephone: (304) 235- 4006 Facsimile: (304) 235-4009

37