## Facts

- A 1707/08 deed set aside a quarter-acre parcel “for a Burying Place” for the Wanton and Rogers families and their descendants “forever” and “for no other use whatsoever.”
- Over centuries, the original larger tract was subdivided and conveyed repeatedly, and the burial plot’s precise modern location became uncertain.
- A 16-acre riverfront parcel in Norwell, Massachusetts, was owned by Blackthorne Realty Trust, with Arthur H. Vinal, Jr. as trustee, and was proposed for subdivision and residential development.
- The Norwell Planning Board conditioned preliminary subdivision approval on identifying the Wanton homestead site and burial plot.
- Vinal retained an archaeological service to test for graves; the investigation did not locate graves or physical evidence of a cemetery within the parcel.
- The Planning Board approved the subdivision, finding the investigation sufficient.
- Sally Sanford, an eighth-generation descendant of Edward Wanton, sued to prevent development that might disturb the ancestral burial ground and to protect her claimed rights of access and protection from desecration.
- The Superior Court dismissed the action, effectively concluding Sanford lacked a legally cognizable interest given the uncertainty about the burial ground’s location and continued existence.

## Issues

1. Whether a remote descendant of persons interred in a private family burial ground has a legally cognizable interest sufficient to seek equitable relief to protect the burial ground and access to it.
2. Whether uncertainty about the burial ground’s exact location or present physical evidence warrants dismissal as a matter of law.
3. What equitable remedy is appropriate where credible historical evidence supports the burial ground’s existence but its location cannot be established with precision before construction.

## Decision

- The Appeals Court vacated the judgment of dismissal and remanded for further proceedings.
- The court held that descendants of persons buried in a private burial ground possess a protectable interest in access to and the integrity of the burial ground.
- The court ruled that uncertainty as to the burial ground’s precise location did not justify dismissal where historical evidence supported its existence.
- The court directed entry of limited equitable relief allowing development to proceed while protecting any burial sites that might be discovered, including an injunction against disturbing human remains and procedures to follow if remains are found.

## Legal Principles

- A burial ground established by deed for family burial purposes may create an enduring, nonpossessory interest (similar to a dedication or easement) limiting use to burial purposes.
- Relatives and descendants have an equitable interest in the sanctity and protection of ancestral graves, even if the interest is not framed as conventional fee ownership.
- Remoteness of kinship does not, by itself, defeat a descendant’s claim where the creating instrument contemplates benefits for “heirs,” “posterity,” or similar classes.
- Lack of present physical markers or failure to locate graves through investigation does not necessarily negate the existence of an historic burial ground or bar narrowly tailored equitable relief.
- Equity may craft remedies that protect potential burial sites during development (e.g., prohibiting disturbance of remains and requiring work stoppage, notice, and compliance with statutory procedures upon discovery), rather than imposing a categorical bar on all construction.

## Conclusion

The Appeals Court recognized a descendant’s enforceable equitable interest in protecting an ancestral family burial ground and held that uncertainty about the burial plot’s precise location did not warrant dismissal; the case was remanded for entry of limited injunctive relief to prevent disturbance of human remains and to ensure proper procedures if remains are discovered during development.


Sanford v. Vinal, 28 Mass. App. Ct. 476, 552 N.E.2d 579 (1990)