SAVE THE MCCARTT CEMETERY IN GOBEY, TN!
There is presently a dispute about access rights and the “ownership” of the McCartt Cemetery in Gobey, TN. A individual(s) who lives near the cemetery has placed “no trespassing signs” around the cemetery and is refusing access to the descendents of the persons buried there. It is also my understanding that an abandoned car is parked in or in close proximity to the site.
There will be a gathering of McCartt, Shannon and Llewellen descendents on Sunday, September 14, 2003 at 1:00 p.m. in the parking lot of the Wartburg Library to sign a "Cease and Desist" Petition. Anyone who is interested in the preservation of historical places in Morgan County, Tennessee is invited and encouraged to sign this petition.
For many years I have been trying to find the records to the cemetery because my G-G-G-Grandparents, the Rev. James Madison McCartt and his wife Rebecca Lewallen McCarrt are buried there. Their stones are intact and legible. My G-G Grandparents, William Riley Shannon and his wife Pernina Jane McCartt Shannon are also buried there.Riley was a Civil War Veteran who is buried in an unmarked grave between Rebecca McCartt and her daughter Pernina Jane McCartt Shannon. After 25 years of research, I finally have gotten the documentation needed by the Veteran’s Administration to obtain a Civil War Marker. It is my intention to place the marker on Riley’s grave. So for me, this little cemetery holds personal meaning and for the people of Morgan County, it has historical value.
I visited the cemetery in July and was much distressed to see its condition. I took the broken stone of my G-G Grandmother back with me to Marietta, GA where I reside with the intention of repairing or replicating her stone and then returning it. I placed public notice on the Morgan County Website about this, so anyone interested in this cemetery would know that my intentions were honorable.
State of Tennessee Cemetery and Burial Laws:
§46-2-105 Crimes and Offenses
(a) No person [sic] shall willfully [sic] interfere, by word or actions, any religious exercises.
(b) A violation of this section is a Class E felony.
“Interested persons,” [sic] means any and all persons who have the right [sic] to a burial ground as such, including [sic] the nearest relative or relatives by consanguinity of any one (1) or more deceased persons whose remains are buried in any burial ground.
§46-8-101 Chapter 8. Family Burial Grounds Protection
This chapter shall be known and may be cited as the "Family Burial Grounds Protection Act." This chapter is intended to provide notice to buyers of property with known burial grounds and gravesites. It does not remove any protection to those sites under existing laws.
§46-8-103. Duty to protect graves or crypt -- Disturbances prohibited -- Transfer of remains.
(a)A deed for real property which indicates the presence of a gravesite or crypt containing human remains on the property conveyed obligates the immediate and future buyer(s) of the property to protect such gravesite or crypt from disturbance. The owner of real property has the responsibility for taking appropriate action, prior to conveying such property, to ensure that the deed reflects the presence of the gravesite or crypt on such property.
(b)Real property which has a deed that reflects the presence of human remains on the property is protected from disturbance or development as follows:
(1)A gravesite may not be disturbed in the area of ten feet (10") surrounding the perimeter of the gravesite.
(c)The owner of real property which has a deed that reflects the presence of human remains on the property has the option of transferring the remains, at the owner's expense, pursuant to the procedure for termination of use as a cemetery in chapter 4 of this title. Upon complete transfer of all human remains from such property which are properly described on the deed, the buyer has the right to the use of the area previously containing the remains as is consistent for the remainder of the property.
I have very carefully reviewed the above statutory law and also the quitclaim deed which this person filed a few months ago.A quitclaim does not impact this cemetery because a quitclaim deed cannot be filed on something one does not own! I have in my possession the original deed where this cemetery was given to the public. Also, there is significant legal precedent to establish that this cemetery is protected, to wit:
Case Laws (Tennessee Supreme Court Decisions)
Walter Hines v. State 149 SW 1058-1060 (1911)
Case argued and determined in the Supreme Court of Tennessee for the Middle Division. Nashville, December Term, 1911.
*Cemeteries. Land devoted and used as a burial ground is held in trust for that purpose by the owner and his successors in title.
Where the owner of land definitely appropriated and devoted a small part thereof as a private family burial ground, and it has been used as such, the land cannot be conveyed or devised so as to interfere with such use, because such owner, his grantees, devisees, and heirs hold the title in trust for the benefit of those entitled to a right or easement of burial in it, who also have the right to visit the cemetery for the purpose of repairing, beautifying, and protecting the graves and grounds, and, for these purposes, they have a right of ingress and egress from the nearest public road, to be exercised at reasonable times and in a reasonable manner.
*Cemeteries. Land... Descendants of landowner devoting land to family burial ground are entitled to burial therein.Where the owner of the land definitely appropriated and devoted a small part thereof as a private family burial ground, and it has been used as such, the right of burial extends to all the descendants of the owner, and they may exercise it when the necessity arises.
*Cemeteries. Land... Descendants... Purchaser takes land subject to burial rights in a lot devoted to private family burial ground, though there be no express reservation.
Where a small part of a tract of land has been devoted to a private family burial use by the owner, those thereafter purchasing the land take it subject to the aforesaid burial rights, without any express reservation in the deed or will under which they take; for such reservation is implied, and purchasers are charged with notice of the fact that the particular lot has been dedicated to burial purposes, and of the rights of descendants and relatives of those there buried. Burial lots, whether public or private, are not the subject of trade and commerce, and it is always presumed that they are not included in the sale of land which surrounds them.
*Cemeteries. Land... Descendants... Purchaser... Burial ground rights are not barred by statutes of limitations so long as graves are marked by monuments, gravestones, or otherwise.
The right to use a private burial ground as such is not barred by the statute of limitations, so long as it is kept inclosed [sic]; or, if uninclosed [sic], so long as the monuments and gravestones marking the graves are there, or other attention is given to the graves, so as to show and perpetuate the sacred object and purpose to which the land has been devoted; for possession by the living is not required, in such case, to prevent the acquirement of title by the adverse possession of the owner of the fee, so long as the dead are there buried, their graves are marked, and any acts are done tending to preserve their memory and mark their last resting place.
*Cemeteries. Desecration of private burial ground and graves therein, and wrongful obstruction of way thereto, are misdemeanors.
The desecration of a private burial ground, and graves therein, and the wrongful obstruction of the easement of a right of way from the public road thereto, as against those entitled to use it, are misdemeanors, subject to punishment under the statutes applicable to offenses of that character.
It is the responsibility of law enforcement personnel with jurisdiction over the location of the cemetery to enforce these laws.
I have already mobilized a virtual army of people prepared to take legal action if we cannot settle this matter out of court. We will be contacting every government official, newspaper, television station and historical society located in East Tennessee.Many persons and organizations have already been contacted for assistance in this matter.We also have prepared formal letters of complaint to send to the following:
Morgan County Attorney Joe Judson
Morgan County Clerk and Master Libby Adams
Secretary of State Riley Darnell
State Senator Tommy Kilby
State Representative John Mark Windle
Governor Phil Breseden
U.S. Congressman Zach Wamp
U.S. Senator Lamar Alexander
U.S. Senator Bill Frist
The Morgan County Historical Society
The East TN Historical Society
The Department of Environmental Conservation
The Tennessee State Review Board – National Register of Historic Places
It is certainly not my intention to threaten or harass this person; however she needs to understand that this is a very serious matter.I am willing to meet with her or her attorney to discuss this further, but unless she chooses to cease and desist, she will be sued in a court of law. Unless I have a formal answer within 30 days from of the date of this notice, legal action against her will commence.
If you are a member of the McCartt, Shannon, Llewellen families in East Tennessee or any other person descended from these families, or a person interested in preserving a historical site, please join us on Sunday, September 14th at 1:00 p.m. in the parking lot of the Wartburg Library in Wartburg, TN. Thank you.
Melinda Shannon Freels
September 8, 2003