## Facts

- Community Construction, Inc. developed a residential tract after the Stockton City Council approved a final subdivision map (1979).
- During excavation, the developer uncovered and disinterred human remains, ultimately disturbing remains of over 200 individuals; the land was historically used as a Miwok burial ground and still contained additional remains.
- Wana the Bear, a Miwok descendant related to some or all persons buried at the site, sued to enjoin further excavation and “desecration” (filed July 1, 1980).
- The complaint sought injunctive enforcement of Health & Safety Code § 7052 (criminalizing disinterment of human remains without authority of law) on the theory the site qualified as a protected “public cemetery.”
- The trial court sustained a general demurrer without leave to amend and dismissed the action; the plaintiff appealed.

## Issues

1. Whether the burial ground qualified as a “public cemetery” under the governing California cemetery law.
2. Whether the earlier 1854 “public graveyard” statute (including a “six or more bodies” concept) conferred protectable cemetery status or was superseded by the 1872 cemetery law.
3. Whether Health & Safety Code § 7052 could be enforced by injunction to stop disinterment on privately owned land absent qualifying cemetery status.

## Decision

- Affirmed the judgment of dismissal after sustaining the general demurrer without leave to amend.
- Held the burial ground was not a “public cemetery” under the 1872 cemetery law.
- Concluded the plaintiff could not obtain injunctive relief under Health & Safety Code § 7052 on the premise that the site was a protected cemetery.

## Legal Principles

- On demurrer, properly pleaded material facts are taken as true, but the complaint must state a viable legal theory for relief.
- The 1872 cemetery law supplied the controlling framework for creation of a “public cemetery,” generally requiring either (1) formal dedication or (2) prescriptive public use through continuous, uninterrupted public burial use for the statutory period.
- An earlier graveyard statute not carried forward into the later comprehensive cemetery scheme does not, by itself, establish current “public cemetery” status.
- The existence of multiple human burials on land, standing alone, does not automatically confer “public cemetery” status under the later statutory mechanisms.
- Where the statutory cemetery prerequisites are not met, injunction-based enforcement of disinterment prohibitions tied to cemetery status is unavailable.

## Conclusion

The court held that the Miwok burial site, though historically used for burials and containing human remains, did not meet the statutory criteria for a “public cemetery” under the applicable cemetery law; therefore, the plaintiff could not enjoin the developer’s excavation activities through Health & Safety Code § 7052 on a cemetery-protection theory.


Wana the Bear v. Cmty. Constr., Inc., 128 Cal. App. 3d 536, 180 Cal. Rptr. 423 (Cal. Ct. App. 1982)