Show me your cemeteries, and I will
tell you what kind of people you have. --
If you're interested in
additional information on archaeology, burials, and cemetery preservation, see
our Frequently Asked Questions. We also have
links to cemetery
and burial laws in other southern states. We also have the complete text of
the 2005 Charleston County Circuit Court decision in the case of
East Cooper River Civic Club et
al. v. Remley Point Development, LLC et al..
S.C. Code of Laws, Section 27-43-310.
Access to Cemeteries on Private Property.
(A) An owner of
private property on which a cemetery, burial ground, or grave is located must
allow ingress and egress to the cemetery, burial ground, or grave as provided in
this section by any of the following persons:
(1) family members
and descendants of deceased persons buried on the private property or an
agent who has the written permission of family members or descendants;
(2) a cemetery plot owner;
(3) persons lawfully participating in a burial; or
(4) a person engaging in genealogy research who has received the written
members or descendants of deceased persons buried on the private
(b) the owner of record, an agent of the owner of record, or an occupant
of the private property acting on behalf and with permission of the
owner of record.
(B) The ingress and
egress granted to persons specified in subsection (A) must be exercised as
provided in this section and is limited to the purposes of:
(2) maintaining the gravesite or cemetery;
(3) lawfully burying a deceased person in a cemetery or burial plot by those
granted rights of burial to that plot; or
(4) conducting genealogy research.
(C)(1) In order to
exercise the ingress and egress provided in subsection (A), a person authorized
by subsection (A) must give written notice to the owner of record, an agent of
the owner of record, or an occupant of the private property acting on behalf of
and with permission of the owner of record that:
(a) he or the
person for whom he requests ingress and egress meets the statutory
requirements provided in subsection (A); and
(b) he requests a written proposal designating reasonable conditions for
the exercise of ingress and egress as provided in subsection (B).
(2) Within thirty
days after receipt of the written notice to exercise the ingress and egress,
the owner of record, an agent of the owner of record, or an occupant of the
private property acting on behalf and with permission of the owner of record
must respond with a written proposal designating reasonable conditions for
ingress and egress, including, but not limited to, routes to be used for
access, duration of access, and time restrictions for access.
(3) The exercise
of ingress and egress on the property by persons authorized in subsection
(A) for the purposes specified in subsection (B) must be exercised as
reasonably restricted in time and manner by the owner of record, an agent of
the owner of record, or an occupant of the private property acting on behalf
and with permission of the owner of record. The exercise of ingress and
egress must not substantially and unreasonably interfere with the use,
enjoyment, or economic value of the property by the owner or an occupant of
the private property.
(4) If, thirty
days after receipt of the written notice to exercise ingress and egress on
the private property, written notice of reasonable conditions for the
exercise of the ingress and egress as provided in subsection (B) have not
been proposed or accepted, a person authorized by subsection (A) or the
owner of record, an agent of the owner of record, or an occupant of the
private property acting on behalf and with permission of the owner may
institute a proceeding in the magistrates court of the county in which the
cemetery, burial ground, or grave is located. In granting relief to either
party, the magistrate may set the frequency, hours, duration, or other
conditions of the ingress and egress.
(5) A magistrate
may deny the exercise of ingress and egress as provided in this section if:
(a) the person
seeking to exercise the ingress and egress is not authorized by
subsection (A); or
magistrate is presented with credible evidence that the person
authorized by subsection (A) is involved in an imminent or actual
violation of state or local law while upon, or entering, or exiting the
private property; or
magistrate makes a finding, based upon a showing of credible evidence,
that there is no condition of entry, no matter how limited in time,
manner, or otherwise restricted, that would allow the person authorized
by subsection (A) to enter the private property for the purposes
authorized by subsection (B) without substantially and unreasonably
interfering with the use, enjoyment, or economic value of the property
by the owner or an occupant of the private property.
(6) The provisions
of this subsection do not authorize a magistrate to make determinations
concerning the title of the property or establish an easement across the
(D) In the absence of
intentional or willful misconduct, or intentional, willful, or malicious failure
to guard or warn against a dangerous condition, use, structure, or activity, the
owner of record, an agent of the owner of record, or an occupant of the private
property acting on behalf and with permission of the owner of record is immune
from liability in any civil suit, claim, action, or cause of action arising out
of the access granted pursuant to this section.
(E)(1) A person
exercising ingress or egress to a cemetery, burial ground, or grave under the
provisions of this section is responsible for conducting himself in a manner
that does not damage the private property or the cemetery, burial ground, or
grave, and is liable to the owner of record for any damage caused as a result of
the ingress or egress.
(2) The ingress or
egress to a cemetery, burial ground, or grave on private property conferred
by this section does not include the authority to operate motor vehicles on
the private property unless a road or adequate right-of-way exists that
permits access by motor vehicles and the person authorized to exercise
ingress and egress by subsection (A) has been given written permission to
use motor vehicles on the road or right-of-way.
(F)(1) The provisions
of this section do not apply to any deed or other written instrument executed
prior to the effective date of this section which creates or reserves a
cemetery, burial ground, or grave on private property, and which specifically
sets forth terms of ingress and egress.
(2) The provisions
of this section in no way abrogate, affect, or encumber the title to the
landowner's private property and are exercisable only for a particular
private property that is subject to the provisions of this section."
Keep in Mind that
Common Law Provides Access
While we at Chicora are not
attorneys and cannot offer legal advice, we have identified a number of cases
where the courts in various states have provided common law access to
cemeteries. Common law is based on precedent -- previous court cases -- rather
than statutory laws. Some of these cases also specify that an easement is
created in order to provide that access. For more information we have prepared a
brief report available as a pdf.
Remember, this is not offered as legal advice and if you have a cemetery access
problem you should consult with an attorney licensed to practice in your state.
We'd recommend speaking to either a civil litigation or real estate attorney.
Desecration of Human Remains or Repositories
S.C. Code of Laws, Section 16-17-600.
Destruction or desecration of human remains or repositories
thereof; liability of crematory operators; penalties.
(A) It is unlawful for a person willfully and knowingly, and
without proper legal authority to:
(1) destroy or damage the remains of a deceased human being;
(2) remove a portion of the remains of a deceased human
being from a burial ground where human skeletal remains are buried, a grave,
crypt, vault, mausoleum, or other repository; or
(3) desecrate human remains.
A person violating the provisions of subsection (A) is guilty
of a felony and, upon conviction, must be fined not more than five thousand
dollars or imprisoned not less than one year nor more than ten years, or both.
A crematory operator is neither civilly nor criminally liable
for cremating a body which (1) has been incorrectly identified by the funeral
director, coroner, medical examiner, or person authorized by law to bring the
deceased to the crematory; or (2) the funeral director has obtained invalid
authorization to cremate. This immunity does not apply to a crematory operator
who knew or should have known that the body was incorrectly identified.
(B) It is unlawful for a person willfully and knowingly, and
without proper legal authority to:
(1) obliterate, vandalize, or desecrate a burial ground
where human skeletal remains are buried, a grave, graveyard, tomb, mausoleum,
or other repository of human remains;
(2) deface, vandalize, injure, or remove a gravestone or
other memorial monument or marker commemorating a deceased person or group of
persons, whether located within or outside of a recognized cemetery, memorial
park, or battlefield; or
(3) obliterate, vandalize, or desecrate a park or other area
clearly designated to preserve and perpetuate the memory of a deceased person
or group of persons.
A person violating the provisions of subsection (B) is guilty
of a felony and, upon conviction, must be imprisoned not more than ten years or
fined not more than five thousand dollars, or both.
(C)(1) It is unlawful for a person willfully and knowingly to
steal anything of value located upon or around a repository for human remains or
within a human graveyard, cemetery, or memorial park, or for a person willfully,
knowingly, and without proper legal authority to destroy, tear down, or injure
only fencing, plants, trees, shrubs, or flowers located upon or around a
repository for human remains, or within a human graveyard or memorial park.
(2) A person violating the provisions of item
(1) is guilty of:
(a) a felony and, upon conviction, if the
theft of, destruction to, injury to, or loss of property is valued at two
hundred dollars or more, must be fined not more than five thousand dollars or
imprisoned not more than five years, or both, and must be required to perform
not more than five hundred hours of community service.
(b) a misdemeanor triable in magistrates court
if the theft of, destruction to, injury to, or loss of property is valued at
less than two hundred dollars. Upon conviction, a person must be fined,
imprisoned, or both, pursuant to the jurisdiction of magistrates as provided in
Section 22-3-550, and must be required to perform not more than two hundred
hours of community service.
S.C. Code of Laws, Section 27-43-10.
Notice of proposed removal; due care required.
A person who owns land on which is situated an abandoned
cemetery or burying ground may remove graves in the cemetery or ground to a
suitable plot in another cemetery or suitable location if:
(1) It is necessary and expedient in the opinion of the
governing body of the county or municipality in which the cemetery or burying
ground is situated to remove the graves. The governing body shall consider
objections to removal pursuant to the notice under item (2) or otherwise
before it approves removal.
(2) Thirty days' notice of removal is given to the relatives
of the deceased persons buried in the graves, if they are known. If no
relatives are known, thirty days' notice must be published in a newspaper of
general circulation in the county where the property lies. If no newspaper is
published in the county, notice must be posted in three prominent places in
the county, one of which must be the courthouse door.
(3) Due care is taken to protect tombstones and replace them
properly, so as to leave the graves in as good condition as before removal.
Section 27-43-20. Removal to
plot agreeable to governing body and relatives; board may determine suitable
plot in case of disagreement.
The plot to which the graves are removed shall be one which is
mutually agreeable between the governing body of the county or municipality and
the relatives of the deceased persons. If a suitable plot cannot be agreed upon
between the parties concerned the matter shall be finally determined by a board
of three members which shall be convened within fifteen days after final
disagreement on the new location of the plot. The board shall be appointed as
follows: One member shall be appointed by the county or municipality, one member
shall be appointed by the relatives, and a third member shall be selected by the
two. The decision of the board shall be final.
Section 27-43-30. Supervision
of removal work; expenses.
All work connected with the removal of the graves shall be
done under the supervision of the governing body of the county, who shall employ
a funeral director licensed by this State. All expenses incurred in the
operation shall be borne by the person seeking removal of the graves.
Section 27-43-40. Evidence of
The conveyance of the land upon which the cemetery or burying
ground is situated without reservation of the cemetery or burying ground shall
be evidence of abandonment for the purposes of this chapter.
Cemeteries or Burial Grounds by Power or Water Companies
S.C. Code of Laws, Section 49-9-10.
Publication of notice before creation of artificial lake, pond or
reservoir on cemetery or burial ground.
Any water-power or reservoir company proposing to create an
artificial lake, pond or reservoir on land whereon is situated a cemetery or
burying ground shall, before the creation of such lake, pond or reservoir, cause
to be published once a week for four successive weeks in a newspaper published
in the county or counties in which such lake, pond or reservoir shall be created
or, if there be no such newspaper, in a newspaper having general circulation in
such county or counties a notice which shall set forth (a) the names, if known,
of all persons buried within the area to be covered by water, (b) the names, if
known, of all family and other burying grounds within such area and (c) such
other information as may be known to the company and which would serve to
designate the known graves or graveyards within such area. Such notice shall
further contain a provision calling upon the relatives of all persons buried
within such area to furnish to the company in writing within a stated period of
time, to be not less than thirty days from the date of last publication, a
statement of their wishes with respect to the disposition of the remains of the
persons so buried, signed by the person making the request and giving his
Section 49-9-20. Procedure
authorized if no requests for disposition of bodies received.
Unless the company shall receive written requests for the
disposition of the remains of deceased relatives within the time stated in such
notice, the company shall be at liberty to proceed with the creation of its
proposed pond, lake or reservoir and to remove, if it deems it advisable, the
bodies buried within the area together with any stones or markers to some
suitable place nearby or to allow the bodies to remain within the area to be
covered by water and the relatives of all persons buried within such area who
fail to express in writing their wishes for the disposition of such bodies shall
be deemed to have abandoned such graves.
Section 49-9-30. Petition to
judge upon disagreement as to disposition of bodies.
In the event that the company and the relatives of persons
buried within the pond area of such company shall be unable to agree upon a
proper disposition of the bodies, the company may present a petition to the
resident or presiding judge of the court of common pleas for the county in which
the graves or graveyard in question are located setting forth the facts and
praying for an appropriate order in the premises.
Section 49-9-40. Rule to
Upon the presentation of such petition the judge to whom it is
presented shall issue a rule to show cause returnable in not less than ten days
requiring the persons named in the rule to show cause why the bodies of the
deceased persons in question should not be removed to some suitable cemetery or
burying ground or such other disposition be made with reference thereto as to
the judge before whom the rule is returnable may seem just and proper.
Section 49-9-50. Service
of rule to show cause.
The rule to show cause provided for in Section 49-9-40 shall
be directed to the interested persons who have furnished the company the written
statement or request prescribed in Section 49-9-10 and shall be personally
served upon such persons as are residents of the State. If the persons to be
served are nonresidents service may be made by registered mail, in which case a
copy of the rule and petition shall be mailed at least ten days prior to the
return date of such rule.
Section 49-9-60. Hearing; final
Upon the return of such rule the judge before whom it is
returnable may decide the issues arising thereon upon the petition and return or
he may hear testimony or refer the matter to the master in equity, the clerk of
court of the county or to a special referee and the matter shall thereon proceed
to final determination in the same manner as is provided by law for actions so
referred. The final order to be entered in the proceedings shall provide for a
suitable and reasonable disposition of the bodies, taking into account all
relevant circumstances, or it may provide that the bodies be allowed to remain
under such conditions as the court may prescribe.
Section 49-9-70. Removal of
bodies; supervision; expense.
All removal of bodies under the provisions of this chapter
shall be made under the supervision of a duly licensed embalmer and shall be at
the expense of the company instituting the proceeding.
Authority to Preserve and Protect Cemeteries
S.C. Code of Laws, Section 6-1-35. Preservation and
protection of cemeteries.
(A) Counties and municipalities are authorized to preserve and protect any
cemetery located within its jurisdiction which the county or municipality
determines has been abandoned or is not being maintained and are further
authorized to expend public funds and use county or municipal inmate labor, in
the manner authorized by law, in connection with the cemetery.
(B) As used in this section, the term "preserve and protect" means to keep safe
from destruction, peril, or other adversity and may include the placement of
signs, markers, fencing, or other appropriate features so as to identify the
site as a cemetery and so as to aid in the preservation and protection of the
Burial and Cemetery
Laws in Other Southern States
Please understand that this information is offered for general
information and specific questions should be referred to an attorney. Also
remember that laws change and you should verify that the links provide
up-to-date information. Finally, links change -- please let us know if any of
these are no longer working and we'll attempt to update the information.
(burial excavation permit)
(injury to cemetery)