by Helen Shaw
MOCA Legislative Liaison

Who can access a cemetery or burial ground can be a tricky question and depends on a number of issues. To keep things simple below I will use the term cemetery as the general term.

If the cemetery is public anyone can go into it during posted hours (usually daytime). 

Title 13, §1101-A. Definitions: "Public burying ground" means a burying ground or cemetery in which any person may be buried without regard to religious or other affiliation and includes a cemetery owned and operated by a municipality, a cemetery corporation or a cemetery association.   

If a cemetery is adjacent to (ie: touching) a public right of way, anyone can go into it; again, usually only during daytime. 

The access issue becomes complex when the cemetery is private and is not adjacent to a public right of way. This issue comes up when talking about accessing an Ancient Burying Ground. The statutory definition is below.

Title 13, §1101-A. Definition

1.  Ancient burying ground.   "Ancient burying ground" means a cemetery established before 1880 in which burial is restricted to:  

A. Members of the family or families that established the cemetery, their descendants or others as chosen by the members of the family or families that established the cemetery; or   [PL 2019, c. 561, §2 (NEW).]

B. Persons or a group of persons as specified by the persons or group of persons that established the cemetery.   [PL 2019, c. 561, §2 (NEW).]

The existence of an ancient burying ground may be established in accordance with section 1101-B, subsection 3.   

Title 13, §1101-B. Ancient burying grounds

 1.  Access to ancient burying grounds on privately owned land.  The owner of an ancient burying ground shall provide a municipality or its caretaker designated pursuant to section 1101 access necessary to perform the duties pursuant to section 1101 and Title 30-A, section 2901. Any unreasonable denial to provide access may result in the owner being held responsible for any fines, court costs and attorney's fees incurred by municipalities in legally obtaining access or for failing to meet the requirements of section 1101.  
[PL 2013, c. 421, §2 (AMD).]

2.  Maintenance by landowner.  A person who owns a parcel of land that contains an ancient burying ground and chooses to deny access to the municipality or its caretaker designated pursuant to section 1101 shall assume the duties as described in section 1101 and Title 30-A, section 2901, subsection 1. Maintenance of an ancient burying ground by the owner exempts the municipality from performing the duties as described in section 1101.  

A municipality or its caretaker designated pursuant to section 1101 to carry out the municipality's functions regarding an ancient burying ground must have access to any ancient burying ground within the municipality in order to determine if the ancient burying ground is being maintained in good condition and repair. If an ancient burying ground or a veteran's grave within an ancient burying ground is not maintained in good condition and repair, the municipality may take over the care or appoint a caretaker to whom it delegates the municipality's functions regarding an ancient burying ground.   

Title 13, §1142. Family burying grounds

When a person appropriates for a family burying ground a piece of land containing not more than 1/4 of an acre, causes a description of it to be recorded in the registry of deeds of the same county or by the clerk of the town where it is situated and substantially marks the bounds of the burying ground or encloses it with a fence, it is exempt from attachment and execution. No subsequent conveyance of it is valid while any person is interred in the burying ground; but it must remain to the person who appropriated, recorded and marked that burying ground and to that person's heirs as a burial place forever. If property surrounding a burying ground appropriated pursuant to this section is conveyed, the property is conveyed by the person who appropriated the property or by an heir of that person and the conveyance causes the burying ground to be inaccessible from any public way, the conveyance is made subject to an easement for the benefit of the spouse, ancestors and descendants of any person interred in the burying ground. The easement may be used only by persons to walk in a direct route from the public way nearest the burying ground to the burying ground at reasonable hours.

The ACLU has on at least one occasion stated in a legislative committee meeting that access by family members as outlined in the statute above, only applies to family cemeteries established after the statute was passed in 1991. MOCA and other groups have tried for years to get legislation passed to allow access for descendants of those buried in Ancient Burying Grounds surrounded by private property. The issue of who owns an Ancient Burying Ground is very complex and is also an issue that MOCA has tried to clarify via legislative action.

On a related issue, the following is the statute regarding the care of veterans’ graves and Ancient Burial Grounds in general. This covers access for those caring for veterans’ graves and Ancient Burial Grounds.

Title 13, §1101. Maintenance and repairs; municipality

1.  Grave sites of veterans in ancient burying grounds.  

In any ancient burying ground, as referenced in Title 30-A, section 5723, the municipality in which that burying ground is located, in collaboration with veterans' organizations, cemetery associations, civic and fraternal organizations, descendants of veterans buried in the ancient burying ground and other interested persons, shall keep in good condition all graves, headstones, monuments and markers designating the burial place of Revolutionary soldiers and sailors and veterans of the Armed Forces of the United States. To the best of its ability given the location and accessibility of the ancient burying ground, the municipality, in collaboration with veterans' organizations, cemetery associations, civic and fraternal organizations, descendants of veterans buried in the ancient burying ground and other interested persons, shall keep the grass, weeds and brush suitably cut and trimmed on those graves from May 1st to September 30th of each year. A municipality may designate a caretaker to whom it delegates for a specified period of time the municipality's responsibilities regarding an ancient burying ground. A caretaker for a municipality may be designated only by a writing signed by the municipal officers as defined in Title 30 A, section 2001, subsection 10.  [PL 2019, c. 561, §1 (AMD).]

1-A.  Grave sites of persons who are not designated as veterans in ancient burying grounds.  

To the best of its ability given the location and accessibility of the ancient burying ground, the municipality in which an ancient burying ground is located may keep the grass, weeds and brush suitably cut and trimmed from May 1st to September 30th of each year on all graves, headstones, monuments and markers in the ancient burying ground not designating the burial place of Revolutionary soldiers and sailors and veterans of the Armed Forces of the United States. A municipality may designate a caretaker to whom it delegates for a specified period of time the municipality's functions regarding an ancient burying ground.