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FEMALE UNION BAND ASSN. v. HEIRS AT LAW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


July 31, 1975

FEMALE UNION BAND ASSOCIATION, ET AL., Plaintiffs,
v.
UNKNOWN HEIRS AT LAW, DEVISEES AND ALIENEES OF JOSEPH MASON, DECEASED, ET AL., Defendants, and NEVILLE WATERS and AFRO-AMERICAN BICENTENNIAL CORPORATION, Intervenors. CHARLES L. NORRIS, ET AL., Plaintiffs, v. UNKNOWN HEIRS AT LAW, ET AL., Defendants, and NEVILLE WATERS and AFRO-AMERICAN BICENTENNIAL CORPORATION, Intervenors

The opinion of the court was delivered by: GASCH

MEMORANDUM-ORDER

This matter is before the Court on trustees' petition to sell real estate under Order Nisi and intervenors' oppositions thereto, and intervenors' motions to vacate the August 10, 1964, Order permitting the disinterment of bodies buried in the west side of the Mt. Zion Cemetery and trustees' opposition thereto.

 I. Background.

 Mt. Zion Cemetery occupies lots 802 and 803 in Squares 1288 and 1289 in the northeastern section of the Georgetown Historic District located at 27th and Q Streets, Northwest, Washington, D.C. The eastern portion of Mt. Zion Cemetery is known as the "Old Methodist Burial Grounds" and is owned by the Dumbarton United Methodist Church. The western portion, which is the subject of this litigation, is known as the Female Union Band Society Graveyard (hereinafter referred to as the Graveyard). It is owned by the heirs of Female Union Band Society members and the estate of Charles L. Norris. No fence separates the two properties, and over the years they have come to be known in the community simply as the Mt. Zion Cemetery.

 The Female Union Band Society was founded by a group of free black women around 1842. The constitution and by-laws of this cooperative benevolent society pledged to each member assistance when sick, including the payment of two dollars a week, as well as a grave and twenty dollars for funeral expenses when deceased.

 The Graveyard was purchased by Joseph Mason in trust for the Society for $250 on October 19, 1842, from Joseph E. Whitehead of New Orleans, Louisiana. The deed was recorded on August 8, 1843. *fn1" The land was used by the Society for burial grounds until 1950, when the last burial took place. The last regular meeting of the Female Union Band Society had been in 1948. *fn2"

 In 1960 the Society resurrected itself to defend its title to the property against a claim to title by adverse possession filed by the Mt. Zion Methodist Church. *fn3" The Society was represented in this action by Charles L. Norris, Esquire. The Society prevailed and assigned a 25 percent interest in the Graveyard to Mr. Norris as payment for his services.

 The Society was unable to maintain the cemetery, however. No provision had been made for perpetual care. As a result the Graveyard fell into a state of disrepair. In 1953 the District of Columbia prohibited further interments because the cemetery was not in compliance with Health Department regulations.

 On October 22, 1963, the Female Union Band Society and Charles L. Norris petitioned this Court for permission to disinter the bodies in the Graveyard and bury them in another cemetery that provided perpetual care. *fn4" There being no opposition, the petition was granted by Judge Jones, sitting as Motions Judge, on August 10, 1964.

 Thereafter another suit was filed to clear title to the property. *fn5" By Order dated April 20, 1967, Judge Walsh, sitting as Motions Judge, declared and adjudged fee simple title to the Graveyard vested in twenty-three named heirs of Society members and Charles L. Norris as tenants in common. On May 11, 1967, the Court appointed Charles L. Norris and George E. C. Hays trustees to sell the Graveyard for the benefit of the tenants in common.

 The trustees attempted to obtain better zoning for the cemetery before selling it. The area was (and is) zoned for single family dwellings. They determined that the land would bring a better price if it were zoned for apartments or townhouses. But their application for a change in zoning was denied by the Zoning Commission on April 22, 1971. *fn6" The decision of the Zoning Commission was appealed to this Court, and the Court remanded the case back to the Zoning Commission for findings of fact on which the decision was based. The Zoning Commission still has the case open; no findings of fact have been made. Attorney's fees and costs of trial in connection with the Zoning Commission action amounted to approximately $20,000. These fees and costs were advanced by Charles L. Norris with the understanding that he would be reimbursed out of the proceeds of the sale of the property.

 After the original trustees died, Robert T. Smith and George H. Windsor were appointed trustees to sell the land. Robert T. Smith is also a co-executor of the estate of Charles L. Norris. The new trustees decided to sell the land under its present zoning status. On November 8, 1973, they executed a contract to sell the land to David W. Evans at a price of $144,000 plus costs of disinterment of the bodies in the Graveyard and reburial elsewhere. *fn7" On February 7, 1974, the trustees petitioned this Court for permission to sell the land under the Order Nisi. This petition was assigned to the Court sitting as Motions Judge and is now before the Court.

 On April 23, 1974, the Court granted Neville Waters leave to intervene in opposition to execution of the Order of August 10, 1964. *fn8" Neville Waters is the son of Gertrude Turner Waters, one of the Society members who petitioned the Court for permission to disinter in 1963.

 On June 26, 1974, the Court granted the Afro-American Bicentennial Corporation (hereinafter referred to as ABC) leave to intervene in opposition to the execution of the Order of August 10, 1964. *fn9" ABC is a private non-profit research organization and consulting firm.

  II. Efforts at Restoration.

 Both Neville Waters and ABC moved pursuant to Rule 60(b)(5) or (6) of the Federal Rules of Civil Procedure *fn10" to vacate the August 10, 1964, Order permitting disinterment and opposing the May 11, 1967, Order permitting sale of the land on grounds of changed circumstances, public policy, violation of present D.C. law, *fn11" and laches. *fn12"

 Intervenors pointed out in their motion *fn13" that in 1963 the cemetery was unkept; *fn14" there was no provision for perpetual care; there was no willingness to undertake maintenance; and it was in the best interests of the community to terminate cemetery use of the land.

 In 1974 the cemetery was still unkept, but a recent inspection by the D.C. Health Department *fn15" indicated that all that needed to be done to conform the cemetery to Health Department regulations was to cut back brush and weeds, set straight toppled tombstones, and fill in depressions which had appeared over certain grave sites. Furthermore, the interest of ABC and other groups in preserving this historically unique cemetery contrasted with the Society's inability to maintain the cemetery in the 1950's and 1960's. Finally, the intervenors suggested, there was a possibility that Mt. Zion Cemetery might be declared a national monument and thereby come under the perpetual care of the United States Department of the Interior.

 In June, 1974 the Court met with all parties in chambers. ABC stated that it was willing to purchase the Graveyard for one dollar in order to preserve it as a national landmark. The trustees replied that they had executed a contract to sell the land; if ABC wanted to preserve the land as a cemetery, it should offer to purchase the Graveyard for the sale price of $144,000. ABC admitted that it did not have funds to purchase the land but suggested that volunteer help could be used to restore and maintain the Graveyard until it could be taken by the Interior Department. The trustees rejected the suggestion that volunteer help could restore the cemetery, and they questioned whether money could be found for perpetual care, noting that prior efforts to have the cemetery taken by the National Park and Planning Commission had failed. They contended that there was no change in circumstances because there was still a lack of funds to buy, restore, and maintain the Graveyard.

 In July ABC wrote the trustees and offered to clean up the Graveyard so that it would be in conformity with Health Department regulations. *fn16" The trustees' response did not discuss the proposed offer of assistance in clean-up. *fn17"

  On November 13, ABC moved for an order to show cause why the trustees of the Graveyard should not be ordered and directed to permit a routine maintenance and clean-up of the cemetery as proposed and offered by ABC, or, in the alternative, to clean it up themselves. The trustees responded *fn18" that the Court-ordered disinterment and sale would eliminate any violations of Health Department regulations. They stated that they did not have the authority or the funds to maintain the property; their only job was to sell the land. They objected to having volunteers on the property because this would expose the trustees and owners to liability claims by any volunteers who might be injured while working in the Graveyard.

 A lengthy hearing was held in open court on December 9, 1974, on the cost and feasibility of restoration and maintenance of the cemetery, matters which went to the issue of changed circumstances. The trustees presented two expert witnesses *fn19" who testified that it would cost $377,931 to restore Mt. Zion Cemetery (both portions) and $42,111 annually for maintenance. Then the intervenors presented their witnesses.

 Captain John Sullivan, president of the American Federation of Police, described how his group, with the help of the Police Boys' Club and other volunteer associations, had restored old Congressional Cemetery and the Dumbarton Church portion of Mt. Zion Cemetery. *fn20" He indicated the Federation's willingness to clean up the Female Union Band Society portion of Mt. Zion Cemetery and assured the Court that all volunteers would provide releases from liability.

 Delegate Walter Fauntroy then testified that he would sponsor legislation to have Mt. Zion Cemetery designated a national monument. *fn21"

  Charles Cassels, an architect and professor at Federal City College, testified that the D.C. Council of Black Architects endorsed ABC's plan to restore the cemetery and was prepared to provide voluntary services from its member firms.

 Lester Collins, retired professor and former chairman of the department of landscape architecture at Harvard University, presented in testimony an imaginative proposal for a restored Mt. Zion Cemetery and the creation of a Memorial Park. He testified that such restoration could be accomplished at nominal cost with volunteer help, and he offered to provide landscaping plans and supervision.

 Knox Tull, professor of architecture and engineering at Washington Technical Institute, testified that he was prepared to locate, identify and plot all grave markers for the restoration at no cost.

 Finally, Vincent deForest, chairman of ABC, testified that other groups have volunteered their assistance in restoring the cemetery. He announced that ABC had petitioned the Joint Committee on Landmarks of the National Capital *fn22" to designate Mt. Zion Cemetery as an Historic Landmark. He admitted again that ABC did not have the funds to purchase the Graveyard.

 Subsequently the Court visited Mt. Zion Cemetery for the second time and noted the volunteer work performed in the Dumbarton Church portion of the cemetery and the unkept condition of the Society portion.

 On December 13, 1974, the Court issued an Order authorizing ABC and those acting in concert with it to contribute voluntarily their labor and services to remove dead trees, small trees, saplings, trash, and undergrowth from the Female Union Band Society portion of Mt. Zion Cemetery. The Court conditioned the acceptance of such volunteer services on the furnishing of adequate insurance to cover liability or waivers of liability by the volunteers.

 On March 27, 1975, ABC moved the Court to amend its December 13 Order to permit additional interim care of the Graveyard. This motion was vigorously opposed by trustee Robert T. Smith at a hearing on April 7. On April 8, 1975, the Court issued an Order authorizing ABC and those acting in concert with it to transcribe the present location of all graves, markers, and memorials; catalog and mark all memorial and burial markers; temporarily remove all markers and monuments for the purpose of grading and filling sunken grave sites; seed and plant appropriate ground cover; and construct a temporary fence or other barrier to restrain persons from dumping trash or refuse on the property. Again ABC was directed to provide liability insurance or waivers of liability.

 On July 24, 1975, the Court received a letter from the D.C. Health Department dated July 17, 1975, stating that the Mt. Zion Cemetery, including the west section owned by the Female Union Band Association, is in conformity with Health Department regulations with the exception of leveling the earth over certain sunken graves and providing ground cover. The letter noted that ABC is completing the transcription of grave markers and then intends to fill sunken graves and seed the ground.

 The Court has made another visit to the Cemetery and observed that work is progressing.

  III. Efforts at Preservation.

 At the same time that ABC by leave of Court was making efforts to restore Mt. Zion Cemetery to bring it into conformity with Health Department regulations, it was also trying to find a way to provide perpetual care for the cemetery. ABC petitioned the Joint Committee on Landmarks of the National Capital *fn23" to designate Mt. Zion Cemetery an Historic Landmark. A hearing was held on March 7, 1975, at which time the Committee's staff recommended that the petition be granted. Robert T. Smith, one of the trustees of the Graveyard, and Vincent deForest, chairman of ABC, were among those who testified concerning the petition.

 On April 29, 1975, the Joint Committee announced its decision granting ABC's petition. The Committee designated Mt. Zion Cemetery an Historic Landmark and recommended it for nomination to the National Register of Historic Places. It explained its reasons as follows:

 

The Mount Zion Cemetery (Methodist Episcopal Burying Grounds; Female Union Band Society Graveyard) qualifies as a Category II Historic Landmark of importance *fn24" which contributes significantly to the cultural heritage or visual beauty and interest of the District of Columbia and its environs and which should be preserved or restored for the following reasons:

 

(1) Its history and that of the generations of Blacks both free and slave interred therein uniquely convey the quality and thrust of Black life and evolving free Black culture in the District of Columbia from the earliest days of the city to the present.

 

(2) It is one of the few remaining physical reminders of the significant contributions of Black people to the development of Georgetown, which during the late nineteenth century was between 35 and 45 percent Black in population. *fn25"

 The Court understands that Delegate Fauntroy has prepared legislation to establish Mt. Zion Cemetery as a National Historic Site in the District of Columbia. If enacted by Congress, the Cemetery would become a public national memorial park, administered and developed and preserved by the National Park Service under the direction of the Secretary of the Interior.

 IV. The Court's Decision.

 It is obvious from what has been stated above that the conditions in 1964 which led Judge Jones to authorize the disinterment of bodies from the Graveyard have changed materially. The cemetery is now in substantial conformity with Health Department regulations. Maintenance is being provided on an interim basis. There is a possibility that the cemetery may be acquired by the United States Department of the Interior, thereby providing perpetual care. Such changed conditions raise the question of whether it is equitable that the judgment made in 1964 be executed in 1975. *fn26" The Court thinks it is not. For the following reasons the Order to disinter the bodies will be vacated.

 We begin with the fact that disinterment of a single body is not favored in the law. *fn27" Public policy frowns on the disinterment of a body and its removal to another burial place, and it is the policy of the law, with certain exceptions, *fn28" that the sanctity of the grave should be maintained, and that a body once suitably buried should remain undisturbed. *fn29"

 Here we are not dealing with a single dead body but with innumerable bodies of persons known and unknown. *fn30" Disinterment would not be one by one, but en masse. It would be executed not by shovel, but by a bulldozer-like machine called a "back-hoe." No matter how reverently the back-hoe might be maneuvered, no matter how respectfully the bones might be placed into a pile, *fn31" this kind of operation cannot but offend the sensitivities of civilized people.

 A mass disinterment similar to the one at issue in this case was carried out in 1959 when Columbian Harmony Cemetery was moved from northeast Washington to Landover, Maryland. In recent months Metro workers digging on the former site of Harmony Cemetery have uncovered the remains of bodies unreached, overlooked, or ignored during the mass disinterment of that cemetery. *fn32" Yet the bodies from that cemetery were properly disinterred. *fn33" There is no reason to believe that the disinterment would be different at the Female Union Band Society Graveyard.

 Equally important is the fact that not only would such a degradation be perpetrated against the dead, but in this instance the violation of their graves involves the destruction of a monument to evolving free Black culture in the District of Columbia. At the time the Order to disinter bodies was entered there was insufficient interest in preserving a monument to Black people, and respect for these Black departed dictated removal of their remains to an attended cemetery. Such is not the case in 1975.

 Today both Black and white Americans are concerned to recognize Black contributions to our nation's heritage and to commemorate it by appropriate monuments. That Mt. Zion Cemetery is looked upon as such a monument is demonstrated by the large numbers of Blacks and whites who have worked side by side to restore it. It would be an affront to the entire community and a betrayal of America's quest for human dignity for all people to permit the disinterment of this cemetery when there is a possibility of its restoration and maintenance in perpetuity as a monument to Black traditions in our nation's capital.

 V. Some Equitable Adjustments.

 However, if the Order to disinter is to be vacated, the Court, sitting as Chancellor, must seek to deal equitably with the other claims against the land.

 The first of these is the claim of the Norris estate. Mr. Norris expended approximately $20,000 of his own money attempting to obtain a change of zoning of the Mt. Zion property before selling it. *fn34" In so doing he was representing his own interest as well as that of the decedents of the Female Union Band Society. It was understood that he would be reimbursed from the proceeds of the sale of the property. If no sale takes place, that money cannot be repaid.

 In this case, however, the Court does not believe that equity compels reimbursement. Mr. Norris and the other owners could have sold the land "as is," that is, with the single family zoning that was and is in effect. Instead he and they *fn35" tried to obtain apartment or townhouse zoning that would bring a more favorable price for the land. This was a speculative venture. If it had succeeded, the land would have been sold long ago for a higher price, all to the benefit of the owners. Since it failed, those who speculated must sustain the loss.

 There is also the claim of the known owners of the land who expected to derive some money from the sale of the cemetery. This expectancy ranges from approximately $30,500 for the Norris estate to approximately $762.50 for one of the other owners. *fn36" The precise interest of most of the descendants as well as their identity is to the Court unknown but this does not prevent the Court from recognizing that usually the descendant of one buried in an ancient graveyard prefers to have the bones of his ancestor rest in peace.

 The law is clear that financial benefit is not a sufficient reason for disinterment. *fn37" Thus the law itself disposes of this claim. But the Court believes that this disappointment of the owners' financial hope *fn38" will be compensated at least in part by the satisfaction of knowing that their departed can rest in peace, and that those who chose to be buried with their loved ones will not be separated from them.

 A more difficult problem is presented by the Norris estate's interest. This 25 percent interest in the land was assigned to Mr. Norris in payment for his legal services in protecting the cemetery from the claim by adverse possession of the Mt. Zion Methodist Church, *fn39" and in settling title. *fn40" If the land is not sold, but is taken by the United States Government as a national monument, these services will be uncompensated. The Court has examined the record in both cases and has determined that the Norris estate should be compensated for professional services rendered in an amount to be determined subsequently.

 A third claim is that of David W. Evans, who has contracted with the trustees to purchase the Graveyard. However, the contract was made "subject to court approval under an Order Nisi," so that Mr. Evans has been on notice from the beginning that the sale was conditional. *fn41"

 Finally there is the claim of the trustees, Robert T. Smith and George H. Windsor, both members of the Bar of this Court. The trustees were appointed to sell the land. Pursuant to that appointment they sought and found a purchaser. They negotiated a sales contract. They incurred expenses in having the land appraised and in defending the owners' expectancy against the intervenors' motions. If the land had been sold, they would have received a percentage of the gross sale price as their commission in the amount of $1,710.00. *fn42" The fact that the land is not going to be sold should not preclude their being paid for having performed the tasks assigned them by the Court and thrust upon them by circumstance. They will also be allowed a reasonable amount to cover expenses of land appraisal and restoration and maintenance appraisal.

 Fortuitously the Foundation for the Preservation of Historic Georgetown has raised and placed a sum of money in the Registry of the Court to be utilized for the restoration and interim maintenance of the Graveyard and such other purposes as the Court finds consistent therewith. Of this sum the Court plans to make payment of $1,710.00 to the trustees for their services, as well as an appropriate amount for their expenses, and a reasonable sum to the estate of Charles L. Norris as compensation for his services in representing the Female Union Band Society in the adverse possession suit filed by the Mt. Zion Methodist Church and in clearing title to the land in the instant suit. The remainder of the money donated by the Foundation for the Preservation of Historic Georgetown shall be made available to the newly-appointed trustees for restoration and interim maintenance of the Graveyard.

 Upon the payment to trustees Robert T. Smith and George H. Windsor the Court is relieving them of their duties. Since the land is not going to be sold, their work is completed.

 Other trustees must be appointed, however, to oversee the restoration of the cemetery and to work for its perpetual care. For this task the Court is appointing Alan Raywid, Esquire, and Eric Sirulnik, Esquire. They will serve without remuneration and will file semi-annual reports with the Court on the progress of restoration and providing perpetual care.

 No one could have foreseen in 1963 when this action began how different the situation would be in 1975. What was then a deteriorated cemetery is now being restored; a forgotten graveyard has become an Historic Landmark to evolving free Black culture in the District of Columbia. As a result, it is now possible to fulfill for these dead a hope expressed by a well known poet: *fn43"

 

When all is done and in the oozing clay,

 

Ye lay this cast-off hull of mine away, Pray not for me, for, after long despair,

 

The quiet of the grave will be a prayer.

 THEREFORE, it is by the Court this 31st day of July, 1975,

 ORDERED that the August 10, 1964, Order of Judge Jones of this Court in Civ. A. No. 2591-63 permitting disinterment of bodies buried in the west end of the Mt. Zion Cemetery (the Female Union Band Society Graveyard) be, and it is hereby, vacated.

 Further Orders on other matters in this Memorandum will be forthcoming.

 REQUIESCANT IN PACE.

 Oliver Gasch / Judge


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