Wana the Bear v. Community Construction, Inc.

California Court of Appeal · 1982 · Property

PropertyCemeteriesBurial groundspublic cemeterygraveyardHealth and Safety Code section 8100Health and Safety Code section 8126dedication

Facts

After Stockton approved a final subdivision map in 1979, defendant excavated property for residential development and uncovered human remains. Defendant continued development and disinterred the remains of over 200 human beings from a site known to have been used by the Miwok Indians as a burial ground until they were driven from the area between 1850 and 1870; at least six sets of remains still lay there. Plaintiff, a descendant of the Bear People Lodge of the Miwok Indians and related to some or all of those buried there, sought to stop further excavation. Plaintiff alleged the site qualified as a cemetery protected by California cemetery law because six or more bodies were buried there.

Issue

Whether a Native American burial ground used before 1873 became a protected public cemetery under California cemetery law solely because six or more human bodies were buried there under the 1854 statute, even though the site was not dedicated as a cemetery and was no longer being used by the Miwoks when the 1872 Political Code took effect.

Rule

Under California cemetery law as construed in this case, a place does not become a protected public cemetery merely because six or more human bodies are buried there. For the post-1872 statutory scheme, cemetery status depends on statutory creation through dedication or through uninterrupted public cemetery use for five years, and the 1872 code is not retroactive absent express declaration.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In rural Sonoma County, Alder View Development began grading a privately owned hillside for new homes and uncovered a cluster of old graves. Local records and archaeological notes suggest at least 18 people were buried there before 1868, but no instrument ever dedicated the parcel for cemetery purposes and no one has used the site for burials since 1870.

If descendants seek an injunction on the theory that the parcel is a protected public cemetery solely because six or more bodies were buried there, how should a California court rule under the majority's reasoning?

Explanation. The majority held that a burial site is not a protected public cemetery merely because six or more bodies are buried there. Under the later statutory scheme, cemetery status depends on statutory dedication or on uninterrupted public cemetery use for five years. A pre-1873 burial site that was never dedicated and was no longer being used when the 1872 code took effect does not qualify solely from the number of bodies present. (Derived from Wana the Bear v. Community Construction, Inc. (1982).)