921 N.W.2d 188
Wis.2018Background
- Petitioners (the DeWitts and others) sought a court order transferring a 1‑acre parcel to the Town of Forest under Wis. Stat. § 157.115(1)(c), alleging it was an abandoned/neglected cemetery where their ancestors were buried.
- The parcel is on a hill abutting Wildcat Mountain State Park, contains no headstones or markers, and is accessible only by crossing private land or the state park.
- Nineteenth‑century deeds contain references to a “one acre now used as [a] cemetery” (1892–1896) and an 1898 deed conveying a 1‑acre tract described as "said land to be used for a cemetery and burial and no other purpose."
- The circuit court, without initial evidentiary hearing, ordered transfer to the Town and later, after an evidentiary hearing, confirmed the transfer, finding the parcel met the statutory definition of a cemetery.
- The court of appeals reversed, holding petitioners failed to prove the statutory precondition that no association or group exists with authority to transfer the cemetery to the town; DeWitts sought review.
- The Wisconsin Supreme Court concluded the parcel is not a "cemetery" under the statutory definition because the record lacks evidence of required formalities (e.g., cemetery authority formation, plats, lot conveyances); it affirmed the court of appeals without reaching other § 157.115(1)(c) requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1‑acre parcel is a "cemetery" for purposes of Wis. Stat. § 157.115(1)(c) | DeWitt: late‑19th‑century deed language and belief that relatives were buried establish cemetery character; no evidence of exhumation means it remains a cemetery (citing Wilder). | Ferries/Town: statutory definition and statutory/administrative formalities (formation, plats, lot conveyances, records) are unmet; deed language alone is insufficient. | Held: Parcel is not a cemetery; record lacks evidence of statutory/formal cemetery formation, so § 157.115(1)(c) does not apply. |
| Whether the court should resolve transfer without proof that no association exists with authority to transfer | DeWitt: did not separately contest this on appeal (primary focus was cemetery status). | Ferries/Town: court of appeals properly found DeWitts failed to prove the statutory requirement that no association or group exists with authority to transfer. | Held: Supreme Court avoided this issue as unnecessary after finding parcel is not a cemetery. |
| Whether historical deed language alone can establish a cemetery absent other formalities | DeWitt: intended use language and absence of evidence of exhumation suffice. | Ferries/Town: historical statutes and precedent require formation formalities; language of intention is insufficient. | Held: Deed language alone insufficient; formation formalities (plats, lot sales, cemetery authority) required to establish cemetery. |
| Applicability of burial‑site protections vs. cemetery statutes | DeWitt: relied on burial‑site cataloging by State Historical Society to support cemetery claim. | Ferries/Town: burial‑site cataloging is separate statutory regime and does not equate to a statutory "cemetery." | Held: Parcel is cataloged as a "burial site" under § 157.70, which affords protections, but that regime is distinct and does not render the parcel a "cemetery" under chapter 157. |
Key Cases Cited
- Wilder v. Evangelical Lutheran Joint Synod of Wisconsin & Other States, 200 Wis. 163, 227 N.W. 870 (Wis. 1929) (cemetery retains character as resting place until remains removed; equitable relief protects graves).
- Town of Blooming Grove v. Roselawn Memorial Park Co., 231 Wis. 492, 286 N.W. 43 (Wis. 1939) (platting, lot sales, and other formalities can establish a cemetery "now in use" absent interments).
- Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (framework for statutory interpretation).