Court Rules Congregational Church Owns Historic Cemetery

By: William F. Galvin

A state Land Court decision has determined the First Congregational Church of Harwich is the owner of the adjacent cemetery based on the conveyance of a three-acre parcel by Samuel Nickerson and Benjamin Smalley in 1743. WILLIAM F. GALVIN PHOTO

HARWICH — The state Land Court has ruled that the First Congregational Church of Harwich is the owner of the historic Harwich Center Cemetery, holding title dating back to 1743. The decision means the church also owns the memorial garden, a subject of controversy with the town's cemetery commission.

The ruling makes clear that the cemetery commission has no authority to order the church to disinter cremains in the 3,000-square-foot memorial garden that are located on top of a possible potters field, a group of unmarked graves. However, state Land Court Judge Robert Foster said the town and cemetery commission have the authority to bar the further interment of cremains in ground directly over unmarked graves.

“We are very happy, we feel the right decision has been made,” Pastor Rev. Thomas Leinbach said of the decision issued on Thursday. “It's all very preliminary and we're trying to figure out how to proceed. Based on the ruling of the judge, we need to coordinate with the town on any further interments there.”

The ownership of the cemetery and the installation of the church's memorial garden became a contentious issue after the cemetery commission used ground-scanning radar to determine that 31 bodies were located in unmarked graves beneath the 141 individuals buried in cremation plots. Subsequent ground scanning tests by two professional companies indicated there were only 19 unmarked graves in the area of the memorial garden.

The commission sought to have the cremains disinterred and relocated to another area of the cemetery, a plan the church opposed.

In 2014, both the commission and the church held firm to their positions. The town claimed when the cemetery commission voted to allow a “scattering garden,” not a cremation interment area, in the Harwich Center Cemetery in 1988. The church disputed that position; the ruling notes the “scattering garden” was incorrectly stated by a commission member in 1988.

“Despite the town's assertion that it was unaware the ashes were to be interred, these actions by the church and communications between the town and the church establish that the church had never intended the memorial garden to be for scattering cremains and the town was on notice of the church's intention to occupy that portion of the cemetery property for the purposes of interring crematory ashes,” the decision states.

Early on in the dispute, the church proposed a settlement which sought an easement in perpetuity for the memorial garden. However, the ruling makes clear the recorded title of the land belongs to the church.

Key to the decision is the three-acre conveyance by Samuel Nickerson and Benjamin Smalley in 1743 for the construction of a meetinghouse in the South Precinct of Harwich. The church argued the 1743 deed is free of any ambiguity and evidences an intent by the grantors to convey interests in the property to the church. The town contended the 1743 deed unambiguously conveys the property to the town for public purposes.

Before the separation of church and state, ratified by the Massachusetts Legislature in 1834, towns and precincts subsisted together and were composed of the same persons, the decision states. “Towns could not be formed or incorporated unless they had a church, known in colonial time as meetinghouse, which served religious as well as secular functions.”

In 1747 a petition was filed in the General Court and the south side of Harwich because a “distinct and separate precinct.” It was the beginning of the division of Harwich into a north and south precinct, and led to the eventual incorporation of the north section as the town of Brewster in 1803. The decision cites a “precinct” as “an ecclesiastically determined area.”

“The historical context supports the interpretation that the 1743 deed was intended to grant property to the ecclesiastical unit, the precinct, and not to the town. In the 1740s, the residents of the southern portion of Harwich sought to establish a separate precinct within the town, to which residents would pay taxes to support their own meetinghouse and minister.

“To accomplish this, Nickerson and Smalley offered a three-acre parcel of land 'situated in the said precinct or the south part of Harwich' in order to 'set a meetinghouse on,' as well as for 'any other publick use that may be thought convenient for that neighborhood or precinct in general.'”

The decision further states: “The evidence in the record shows, and I find, that the historical use of the cemetery by the church was for parochial, not municipal use, purposes both before and after the separation of church and state. In short, the 1743 deed conveyed the property to the church and not the town, and the church retained control of and continued to use the cemetery for parochial purposes after the disestablishment of religion in 1834.” A town meeting article approved in 1938 established a cemetery commission, and the commonwealth promulgated a law allowing the town to take over maintenance obligations of cemeteries “not properly cared for by the owners.” The town argued its assumption of the maintenance obligations constituted a transfer of title to the cemetery.

But the court decision states: “The church voluntarily turned over the maintenance of the cemetery to the town and the town continued to maintain it since that time with the permission of the church. At no time did the church revoke the permission given the town. For the reason stated, the town has also not acquired a prescriptive easement in the cemetery.” The town failed to assert its rights against the church's “actual, open, notorious, exclusive, and adverse use of the memorial garden for a period of over 20 years,” the court ruled.

“Accordingly, even assuming the church did not have record title of the cemetery, in 2009, after 20 years of adversely possessing the area of the memorial garden, the church obtained title to the area,” the decision states.

Relating to the town's position to disinter the cremains located above the unmarked graves, Foster states it is unlikely the interment of cremains in the ground several feet above the graves left undisturbed would constitute a “reuse of and occupied grave” that would violate the statute. He also said the town has adopted no bylaw addressing the “reuse of occupied graves.”

Leinbach said the church has to work with the town in defining where the unmarked graves are located. The town's GPR mapping showed 31 graves and the professional firm the church hired identified 19 graves. Leinbach said the professional firm the church hired was there to supervise the town's firm.

“The experts found different locations than the original mapping,” he said. “We are going to have to have a mutual agreement on where those graves are. We would have no intention of placing them over existing graves. I personally didn't know it was happening until this issue came out.”

Leinbach said the church will continue to use the memorial garden. He said there are families who have been keeping cremains at home until this matter is resolved and there are seven in the church's resurrection chest waiting for interment. He also said the church will honor an earlier commitment to build a memorial to honor those resting in the unmarked graves.

The situation has caused a lot of emotional stress and cost tens of thousands of dollars, Leinbach said.

Town Administrator Christopher Clark said on Tuesday the town needs to make a determination on whether to appeal the decision. The matter is expected to be discussed in executive session with selectmen on Tuesday night. Clark also said he has discussed with town counsel what is necessary to comply with the judge's decision.

He said there may need to be some operational adjustments to comply with the ruling. He also said he has to reach out to Leinbach now that the church owns the property to discuss plans for maintenance of the cemetery.

Clark said on Tuesday it cost the town $78,000 to litigate the dispute.