CITIZEN'S COMPLAINTS

DRYTOWN CEMETERY

REASON FOR REVIEW

A citizen's complaint was filed with the 1998-1999 Amador County Grand Jury by three County residents who claimed they were denied access to the Drytown Cemetery. The complaint was filed too late in the jury's term of office, so it was referred to the 1999-2000 Grand Jury for investigation.

BACKGROUND

The Drytown Cemetery, one of Amador County's oldest pioneer cemeteries, was established during the gold rush era and contains the remains of many of Amador County's earliest residents. The cemetery is a 1.54 acre parcel of land owned by the County of Amador, and is completely surrounded by privately owned property. There is no publicly owned right of way giving access to the cemetery.

Sometime in the early 1990's, the owner of the surrounding property began locking the gate at State Route 49 on the only road leading to the cemetery. Over the next few years, the County Board of Supervisors and the property owner conducted a series of negotiations to try to find a way to guarantee unrestricted public access to the cemetery. The negotiations proved unsuccessful, so in 1996, the County filed a lawsuit in Superior Court asserting that long-term use of the property owner's road by the public implied dedication of a public right-of-way.

During the trial, three residents of Amador County, who had been instrumental in bringing this matter to the attention of the County Board of Supervisors, were subpoenaed to testify on the County's behalf. After hearing the testimony, the Court ruled against the County and declared that the property owner's title "shall be quieted against a claim of a public right-of-way". Subsequently, the property owner denied access to the cemetery, over his property, to the three individuals who testified at the trial. Because there is no other accessible route to the cemetery, the property owner's denial of access has made it impossible for them to visit their ancestor's graves. While denying entry by those three individuals, the property owner has stated that any other person may use his road, providing they first obtain his permission.

METHODOLOGY

Persons interviewed:

1. Two of the three complainants
2. The owner of the property surrounding the cemetery
3. The Board of Supervisor's County Cemeteries ad hoc committee
4. The County Counsel
5. Chairman of the Amador County Cemetery Board
6. Member of the El Dorado County Pioneer Cemeteries Commission

Site visits:

Two site visits were made to the cemetery to examine the feasibility of alternative access routes to the cemetery.

Documents examined:

1. Original recorded map of Drytown, dated 1871.
2. Amador County Assessors Map 8-16.
3. Caltrans archeological map of the cemetery.
4. Superior Court ruling dated July 16, 1996.
5. Legislative Counsel of California opinion, dated March 9, 1999.
6. Numerous other documents, such as transcripts of depositions, letters, newspaper articles and other written accounts of the dispute were obtained and examined.

FACTS

1. The Drytown Cemetery property is owned by Amador County.
2. The land surrounding the cemetery is in private ownership.
3. The 1871 recorded "Map of Drytown" shows the only access to the cemetery as a public right-of-way named "Cemetery Street", connecting "Main Street" (now State Route 49) with the cemetery.
4. The current County Assessor's Map 8-16 shows Cemetery Street in the same location as indicated on the 1871 Drytown Township Map.
5. The Cemetery Street alignment traverses an existing farm pond and its topographic features render it unfit for developing vehicle access to the cemetery.
6. The Cemetery Street right-of-way has never been improved, nor has any attempt been made to provide access to the cemetery via that right-of-way.
7. An opinion of the Legislative Counsel of California, dated March 9, 1999, concluded that Amador County is not legally required to provide access by members of the public to the Drytown Cemetery.
8. A gravel road, having two gates capable of being locked, connects State Route 49 to the cemetery. The road is located on the privately owned land surrounding the cemetery.
9. A July 16, 1996 Superior Court ruling stated that the existing roadway cannot be considered to be a public right-of-way by implied in-law dedication.
10. Three specific individuals are denied access to the cemetery by the owner of the surrounding property. With the property owner's permission, other members of the public are granted entry.
11. The Drytown Cemetery is classed as a pioneer cemetery; it contains the remains of many of Amador County's pioneer families.
12. The owner of the property surrounding the cemetery has stated he will permit an access road to be constructed as an extension of China Street.

CONCLUSIONS

1. By showing a public right-of-way (Cemetary Street) on the Drytown Township Map in 1871, Amador County officials clearly intended there to be a public access to the cemetery.
2. The Amador County Board of Supervisors has, for several years, attempted to resolve the access problem by means of both negotiation and litigation.
3. The County is not legally obligated, under California Statutes, to provide public access to the Drytown Cemetery.
4. Because it has never been improved as an access roadway, Cemetery Street can no longer be considered as a publicly owned right-of-way. In any event, it would be technically and economically infeasible to construct a roadway on that right-of-way.
5. Construction of an access road from China Street would require a major structure to cross Dry Creek as well as extensive road improvements. Although the Grand Jury has not estimated the cost of such access, it would most likely be prohibitively expensive.
6. Although the owner of the surrounding property is legally within his rights to deny access to the cemetery through his property, we believe the exclusion of three specifically named individuals is discriminatory because all other persons are permitted access.
7. Significant costs would be incurred to provide public access by any route, and it is recognized that the Board of Supervisors must weigh those costs against the many other fiscal needs of the County. However, we believe the Board of Supervisors, as representatives of all the County's citizens, has an implied obligation to ensure that all citizens are treated equally with respect to access to publicly owned facilities.

RECOMMENDATIONS

As indicated above, the Amador County Grand Jury has concluded that the County should ensure that all persons have unrestricted access to the Drytown Cemetery. Furthermore, the solution should be a permanent one. We do not believe a simple agreement with the present property owner is sufficient, because the same problem could reoccur should the property be sold or transferred to another person. Based on that conclusion, the Grand Jury recommends the following actions:

1. The Board of Supervisors should publicly state their commitment to preserve the rights of everyone to unrestricted access to the Drytown Cemetery.
2. The Board of Supervisors should enter into meaningful negotiations with the property owner in an attempt to establish a legal public easement along the alignment of the existing access road.
3. Should such a negotiation fail, the County should initiate engineering studies of alternative access routes to determine if any are financially feasible.
4. Should the construction of an alternative route to the existing roadway be shown to be financially infeasible, the Board of Supervisors should institute an eminent domain proceeding to secure permanent, legally binding, unrestricted public access over the route of the existing roadway.