IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF WALLA WALLA
|
DAVID LYONS and LYONS FAMILY RANCH, LLC, a Washington limited
liability company,
Plaintiffs, v. DANIEL CLARK, BARBARA CLARK, and the marital community thereof, and WALLA WALLA HISTORIC CEMETERIES, a
Washington nonprofit Corporation, Defendants and Counterclaimants |
No. 21 2 00450 36 BRIEF
OF DEFENDANTS AND
COUNTERCLAIMANTS |
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?
II. RIGHT OF ACCESS
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?
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.
III. UNLAWFUL ACTIONS BY DEFENDANTS
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:
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.
IV. UNLAWFUL ACTIONS
BY PLAINTIFFS
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….
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.
V. CONCLUSIONS
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
