RANCH, LLC, a Washington limited liability company,






and the marital community  thereof, and



                              Defendants and


No. 21 2 00450 36









Defendants and Counterclaimants present the following brief for the hearing on the preliminary injunction sought by plaintiffs.

                                                  I.  ISSUES PRESENTED

            1.  Do defendants and the public have the right of roadway access between the Lyons Creek Cemetery and Meiners Road?

            2.  Have the defendants trespassed on plaintiffs’ fields causing or threatening great,

immediate or irreparable injury to plaintiffs or otherwise entitling plaintiffs to an injunction and/or  damages?

            3.  Should the plaintiffs be enjoined from unlawfully obstructing access, and/or from unlawfully farming portions of the cemetery, and/or from continuing vandalism at the cemetery?

            4.  Do plaintiffs’ unlawful actions entitle defendants and counterclaimants to damages?


            The Lyons Creek or Hendrix Cemetery land was homesteaded by John and Lucinda Hendrix in 1871, and was deeded to the Hendrix Cemetery Association in 1877.  Along with the cemetery ground itself, the Hendrixes also deeded a road right of way from the cemetery north across Lyons Creek to Meiners Road. See deed attached as Exhibit A. 

            In addition, since the cemetery is landlocked, when the Hendrixes conveyed the cemetery portion of their property to the Hendrix Cemetery Association and retained the remaining parcel which is now owned by David Lyons, an implied easement of necessity was created across the Hendrix’s remaining parcel for access to the nearest public road, as recognized by a long line of Washington Supreme Court cases, including Hellberg v. Coffin Sheep Co, 66 Wash 2d 664 (1965).  This easement of necessity is in addition to the deeded right of way and the established right of public access to cemeteries described in 14 Am Jur 2d, Cemeteries §37 as follows: “Persons entitled to visit, protect, and beautify graves must be accorded ingress and egress from the public highway next or nearest to the cemetery, at seasonable times and in a reasonable manner.”   

            Since this easement of necessity was in use along the western boundary of the Hendrix property and the crossing of Lyons Creek by Coyote Ridge Road, as well as along the southern boundary of what is now Lyons Creek at the time of and since the grant of the cemetery land to the Hendrix Cemetery Association by the original property owner, when Lyons obtained title to the original owner’s remaining servient estate, he took his title subject to the easement in favor of the cemetery as the dominant estate and is bound by it.  No further writings or consent by him are needed for use of the traditional cemetery road access from Meiners Road crossing Lyons Creek at the Coyote Ridge Road crossing, then west along the southern boundary of Lyons Creek to the deeded roadway easement, and from there along the deeded roadway easement to the cemetery.

            As to any claim of adverse possession, Washington cases have held that the owner of a servient estate cannot extinguish an easement across his property by mere use, such as plowing and planting, which is made clear by Cole v. Laverty, 112 Wash. App. 180 (2002), as well as Beebe v. Swerda, 58 Wn. App. 375, 793 P.2d 442 (1990), and other authorities cited therein. Beyond that, when the easement of necessity is for access to an historic cemetery used by the public, the continuation of this right is clear under both statutory and common law provisions.  Cf. Roundtree v. Hutchinson, 57 Wash. 414, 107 Pac. 345 (1911).

            While the plaintiffs’ complaint and the affidavit of David Lyons state that there has never been a road with vehicle access from the cemetery, the presence of very substantial monuments at the cemetery provides positive proof that vehicle traffic to Lyons Creek Cemetery was an essential element in this as well as all other significant cemeteries with large monuments too heavy to have been carried or packed in, to say nothing of the impracticality of carrying caskets that distance, and of attendance at initial burial services by elderly or disabled friends or relatives together with subsequent grave upkeep. 

            In addition to friends and relatives of the deceased, the Washington state legislature has recognized the right of the public to visit cemeteries in its adoption of RCW 68.60.80, which provides:

Abandoned cemetery—Lawful entry purposes.

It is lawful to enter an abandoned cemetery for purposes of:

(1) Burials pursuant to RCW 68.60.070 and associated rules;

(2) Care and maintenance activities authorized under RCW 68.60.030; and

(3) Visitation of graves.

This section provides not only the public right to visit abandoned cemeteries, but the right of those authorized under RCW 68.60.30 to care for and maintain them to do so. Pursuant to that statute, on November 26, 2018, the Washington Department of Archaeology and Historic Preservation issued a Certificate of Authority to Walla Walla Historic Cemeteries for the Care and Maintenance of the Lyons Creek Cemetery. See Exhibit B.

Neither the right of visitation by elderly or disabled members of the public, nor the authorized and required maintenance and care work of defendants could be exercised without vehicle access for the transport of persons unable to walk the required distance from the public road to the cemetery as well as the equipment required for its maintenance. 

            While defendants are willing to cooperate with plaintiffs with regard to the presence of visitors and maintenance workers during days when spraying of the adjacent fields is scheduled, and has taken steps to guard against those visiting the cemetery from straying into the adjacent fields, it is unreasonable for plaintiffs to expect to plant and harvest a crop on the necessary road access route, which needs to be passable throughout the year for both visitation and maintenance.

            Historic and cultural sites are an important public resource that is the subject of increasing public awareness and interest, as demonstrated by the Washington state legislature’s capital grants program administered through the Department of Archaeology and Historic Preservation (DAHP) and its administrative partner the Washington Trust for Historic Preservation, whose grant applications contain this regarding visitation :

▪   Is the cemetery accessible to family members and the public?  Has it been included in public tours, hosted school groups, or provided other educational opportunities?

 ▪   Public access to the cemetery must be provided under reasonable terms and circumstances; for example, a posted sign must provide hours of access or a telephone number to arrange a scheduled visit.

The Lyons Creek Cemetery has been particularly prominent in the community as the burial ground of William W. Davies, as well as several of his followers. Davies was the leader of a Latter-day Saints schismatic group called the Kingdom of Heaven, located in the foothills of the Blue Mountains overlooking Walla Walla from 1867 to 1881. He taught his followers that he was the archangel Michael, who had previously lived lives as the biblical Adam, Abraham, and David. When his son, Joseph, was born on June 17, 1866, Davies announced him to be the reincarnation of John the Baptist, forerunner of the Messiah. When his son Arthur was born on February 11, 1868, Davies declared that the infant was the reincarnated Jesus Christ, and the child came to be called “the Walla Walla Jesus.” When Davies’ son, David, was born in 1869, he declared him to be God the Father, and it is said that he also declared himself to be the Holy Spirit, completing the divine Trinity.  More information on Davies and his community can be found at https://ww2020.net/history-websites/william-davies-and-the-walla-walla-jesus/.         

               As the Washington Trust for Historic Preservation states:

Preservation represents commitment to remembering the past and preparing for a sustainable future. The benefits of historic preservation are often overlooked because they come to societies as a whole rather than directly and immediately benefiting a

developer or property owner.  Preservation of historic properties demonstrates long-term vision by preserving irreplaceable cultural resources.


            Plaintiffs have alleged that defendants have driven over plaintiffs’ fields without their permission, to their damage. 

            As shown in the affidavits of Robert Applegate and Daniel Clark filed by defendants, the defendants have never to their knowledge entered or driven over plaintiffs’ fields, or encouraged others to do so.  All entries and vehicle access by defendants have been limited to the deeded and recognized cemetery roadway easement discussed in section II of this brief, rather than on plaintiffs’ adjoining fields.

            As to the scope of defendants’ duties and responsibilities, which they are required and is their right to perform, RCW 68.60.030 provides in relevant part as follows:

Preservation and maintenance corporations—Authorization of other corporations to restore, maintain, and protect abandoned cemeteries.

(1)(a) The department of archaeology and historic preservation may grant, by nontransferable certificate, the authority to maintain and protect an abandoned cemetery upon application made by a state or local governmental organization, such as a city or county, or by a preservation organization that has been incorporated for the purpose of restoring, maintaining, and protecting an abandoned cemetery. Such authority is limited to the care, maintenance, restoration, protection, and historical preservation of the abandoned cemetery….

 (b) Those organizations that are granted authority to maintain and protect an abandoned cemetery are entitled to hold and possess burial records, maps, and other historical documents as may exist. Organizations that are granted authority to maintain and protect an abandoned cemetery are not liable to those claiming burial rights, ancestral ownership, or to any other person or organization alleging to have control by any form of conveyance not previously recorded at the county auditor's office within the county in which the abandoned cemetery exists. Such organizations are not liable for any reasonable alterations made during restoration work on memorials, roadways, walkways, features, plantings, or any other detail of the abandoned cemetery.

In its application to DHAP for a Certificate of Authority in November 2018, defendants stated:

The burial portion of this unsigned cemetery is currently overgrown with shrubs and weeds, and has suffered vandalism and deterioration of grave markers.  The deeded right of way easement to the property is unmarked and is being farmed…. Our organization intends to arrange for the marking of the cemetery with appropriate signage, for vegetation control at the cemetery, and for possible grave marker repair, in addition to public education regarding the history and presence of the cemetery. 

As shown in the affidavits, on November 29, 2018 I wrote on behalf of WWHC to plaintiff David Lyons introducing the defendants, and stating in part:

 On behalf of a new nonprofit formed for the purpose of protecting and maintaining local cemeteries in Walla Walla County, I am pleased to provide you with a Certificate of Authority to Walla Walla Historic Cemeteries for the Care and Maintenance of the Lyons Creek Cemetery, which has been issued by the Washington State Department of Archaeology and Historic Preservation pursuant to the provisions of RCW 68.60.

The incorporators and initial directors of Walla Walla Historic Cemeteries are Sarah Davies, an historian and archaeologist at Whitman College and president of the local chapter of the Archaeological Institute of America; Susan Monahan, an historic researcher at the Kirkman House Museum and coordinator of the Living History Company at Fort Walla Walla Museum; Steve Wilen, lead researcher for the Walla Walla 2020 Historic Research and Plaque Service; and myself, as coordinator of the Walla Walla 2020 Historic Sites and Markers Project.

Our plan is to mark these cemeteries with signage such as the Lyons Creek example attached, to provide periodic maintenance, to manage access, and to increase public education regarding their significance and protected status. 

With regard to access, we would appreciate an opportunity to meet with you to look over routes that might be beneficial to all parties as an alternative to the present deeded road easement to the cemetery.  Of particular interest is the cable-controlled Coyote Ridge Road route you requested we follow last month leading from the creek crossing south along the creek’s east side to the draw that leads up to the cemetery.  

On April 19, we had a cordial meeting in my office, after which we visited the cemetery together with several of our board members, including Ron Klicker, whose great grandfather was a follower of Davies. At that time, since the deeded access route bisects a field plaintiffs farm and across an unimproved creek bed, David Lyons showed us an alternate route east of the access route where a culvert has been installed for the old Coyote Ridge county road, which he said he preferred that we use, and is the only safe access due to the unsafe condition of the creek bed.

            On April 13, 2020, we again wrote to him as follows: 

The next time you’re in Walla Walla, we’d like to take another hike with you to show you the results of some survey work we’ve had done at the Lyons Creek Cemetery.  This included the placing of posts on the four corners of the deeded cemetery, which are all out in the cultivated fields.  In the meantime, please alert your farmer to this to avoid further cultivation of the cemetery ground or disturbance of the corner posts, while we take steps to try to determine where all of the historic burials are.  We do know that at least one of the row markers is in the cultivated area, and there are indications that others were also located there.

In July 2020, we had volunteer archaeologists come out to the cemetery to consider the possibility of remote sensing technologies to determine where unmarked graves might be.  As a result, they agreed to aim at doing this in the farmed portion of the cemetery that fall, though their plans were interrupted by the pandemic.  They are now seeking an opportunity this fall to complete that work, which is essential to our protection of any graves that may have been disturbed in that portion of the cemetery.

            On October 1, 2021, I spoke to plaintiffs’ attorney Robert King regarding our understanding of our access rights, our next planned work day at the cemetery on October 3, and our desire to cooperate with plaintiffs’ adjoining farming operations, and followed up with the following email: 

As promised, I am attaching the following documents:

1.  Deed from John Hendrix to Hendrix Cemetery Association, 2-8-1877

2.  Lyons Creek Cemetery survey

3.  Letter re legal authorities for access, 3-1-20.

As I mentioned, we are glad to cooperate with the Mr. Lyons and his farming operations to whatever extent is compatible with our duties of care and maintenance and the public’s right to visit this historic cemetery. If you’d like to visit the cemetery this Sunday afternoon, I’d be glad to show you around and to discuss any issues.

As to the farmer’s spraying of the adjoining fields, we’d appreciate your letting us know when this will be done.


As the only safe crossing of Lyons Creek is at the culvert where the old Coyote Ridge county road crosses to the north of the cemetery’s deeded easement road, and was the traditional access route to the cemetery for both vehicles and pedestrians who proceeded from there along the south bank of the creek to the deeded road easement, and then on that to the cemetery, because of the risky fording of the creek elsewhere and its impossibility with vehicles, we are using the Coyote Ridge route exclusively for both pedestrian and vehicle access. 



            Defendants and counterclaimants have alleged that the plaintiffs have wrongfully removed corner survey posts from the Lyons Creek Cemetery, disturbed the soil, plantings, plot markers, and possibly graves in the cemetery with farming equipment, moved a bench from a protected placement at the cemetery to a site near plaintiffs’ farming encroachment, made false complaints against defendants to the county Sheriff, and obstructed road access to the cemetery, as a result of which counterclaimants are seeking injunctive and other relief.

            These actions of plaintiffs are described in the attached affidavits and exhibits submitted by defendants and counterclaimants, including photos of the removed survey posts, past and present farming encroachments, and relocation of the cemetery bench.

            RCW 68.60.040 proscribes a variety of actions at cemeteries as follows:

Protection of cemeteries—Penalties.

(1) Every person who in a cemetery unlawfully or without right willfully destroys, cuts, mutilates, effaces, or otherwise injures, tears down or removes, any tomb, plot, monument, memorial, or marker in a cemetery, or any gate, door, fence, wall, post, or railing, or any enclosure for the protection of a cemetery or any property in a cemetery is guilty of a class C felony punishable under chapter 9A.20 RCW.


(2) Every person who in a cemetery unlawfully or without right willfully destroys, cuts, breaks, removes, or injures any building, statuary, ornamentation, tree, shrub, flower, or plant within the limits of a cemetery is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW….


 Plaintiffs’ removal of the cemetery’s corner survey posts is proscribed by section (1) of the statute prohibiting the tearing down or removing of any markers, posts, or enclosures for the protection of a cemetery.  Plaintiffs’ farming encroachment violates or threatens to violate section (1) proscribing the cutting, injuring or removing of any markers and the cutting, mutilating or injuring of any burial plot, as well as section (2) prohibiting the cutting, removing, or injuring of any vegetation within the limits of a cemetery. The tampering with the cemetery bench also violates section (2) proscribing the removal of any cemetery ornamentation. 

            In addition, plaintiffs’ obstruction of access along the roadway to the cemetery, and the making of false complaints to law enforcement officials have delayed counterclaimants in the performance of the duties of cemetery care, maintenance and protection, for which they are entitled to injunctive and other relief. 


            As discussed above, the rights of defendants and the public to access the Lyons Creek Cemetery by both vehicle and on foot over the traditional cemetery easement road is necessary for the exercise of their rights of visitation and their duties of care, maintenance and protection of the cemetery.  The exercise of these rights is in addition to the rights of the public as the owners of the cemetery land to access their otherwise landlocked property that plaintiffs concede is owned by the State of Washington, which has delegated authority and certain responsibilities to defendants through its issuance of a Certificate of Authority.  Such access is also essential to achieve the legislative purpose behind RCW Chapter 68.60 as well as longstanding public policy shown by the case law to protect, preserve, and honor cemeteries of all kinds, both abandoned and active.

            There being no evidence of trespass by defendants on plaintiffs’ fields or other wrongdoing by defendants, plaintiffs’ complaint should be dismissed. 

            There being clear evidence of wrongdoing by plaintiffs, they should be enjoined from further vandalism at the cemetery, and from further farming encroachments, false reports to law enforcement, and obstruction of the cemetery access road.


Dated:         10-26-21                


                           Daniel N. Clark                                     _______

Attorney for Defendants and Counterclaimants