David R. Henderson  

A Local's Defense of Property Rights

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I live in coastal California, where defenses of property rights are few and far between. That's why I was heartened by this cover story in our local left-wing newspaper, the Monterey County Weekly. It's titled "A longtime Carmel Valley activist gears up for one more fight: the right to be buried in her front yard," and appeared in the January 29-February 4 issue.

For those of you who don't want to take the time to read, the author, Mary Duan, nicely chronicles the trials and tribulations of a 90-year old woman, Darby Worth, who wants simply, when she dies, to be buried in her yard. Bottom line: this seems highly unlikely because of reams of regulations that restrict her ability to use her property as she wishes.

I was disappointed, therefore, when the Weekly did not publish my letter backing Darby. Here it is:

Dear Sir or Madam:

Kudos to Darby Worth for her fight to get her body buried on her own property. Darby has always been a great ally on antiwar, pro-peace issues. It's wonderful to see her be an ally on property rights as well.

Callfornia is one of the most regulated states in the union. The regulations she's fighting are stifling or, as she says, "strangling." It's too bad, but totally predictable, that she has been unable to get any local politicians energized to fight against regulation and for her property rights. As Darby says in the article, "Government bureaucracy is enough to dehumanize anyone."

Yours truly,

David R. Henderson
Research Fellow, Hoover Institution


Comments and Sharing


CATEGORIES: Property Rights , Regulation




COMMENTS (24 to date)
Ken writes:

It seems reasonable to restrict an individual from turning residential property into a cemetery.....or a manure farm....or a venue for outdoor rock concerts.

After all, the neighbors have property rights too.

Proactive restrictive covenants seem to be a reasonable way to avoid these difficult externalities

Ricardo Cruz writes:

Ken, what externalities are you thinking about?

Mark Bahner writes:
It seems reasonable to restrict an individual from turning residential property into a cemetery.

A single grave is a cemetery? How about if people bury their dog or cat? Does that also make a cemetery?

or a manure farm....or a venue for outdoor rock concerts.

...and a single grave is like a manure farm or an outdoor rock concert?

William writes:

Agree with Ken.

For those arguing there is no externality, it seems quite odd to believe, on the one hand, that this woman can reasonably care about what happens to her body after she is dead, while, on the other hand, the people who live nearby are completely unreasonable for not wanting a human body buried in the neighbor's yard.

JK Brown writes:

I was reading the Memoirs of General William T. Sherman. He was in California from 1846-1850. Based out of Monterrey, his descriptions of the landscape are very intriguing, even with my limited knowledge of the the area.

Even some cursory economics with the cost of labor due to the gold rush. The commanding general and family almost starved when he couldn't engage servants to cook for his family in 1849 so he sent his family back to the East and the soldiers existed on their government rations. Also, soldiers at $8 a month with rations, working alongside minimum wage workers at $16/day. Desertion was a problem.

So much potential, choked out in less than two centuries.

David R. Henderson writes:

@JK Brown,
Huh?

Mark Bahner writes:
...while, on the other hand, the people who live nearby are completely unreasonable for not wanting a human body buried in the neighbor's yard.

I don't see anyone who said words like, "completely unreasonable."

But two things:

From the article, there's actually no evidence that her neighbors *are* objecting to her being buried in her yard:

It doesn’t seem to skeeve out her neighbors, either. One of them comes by to drop off some tomatoes; Worth tells him what she’s talking about and asks his opinion.

“It’s your property, Darby, you can do what you want with it,” he says.

And even if they did object, they don't own her property. So if they did object, they should either demonstrate somehow how they or their property are harmed. And they should also try to talk to her about it:

“If someone can say to me, ‘This is the reason you can’t,’ and it makes sense, then I would understand,” Worth says. “But this is --deleted by censors--. ;-)”

Maybe they could tell her, "If you get yourself cremated and your ashes buried in your yard, rather than having your body buried, I'll donate $5000 to your favorite charity." Or, "I'll donate $3000 to your granddaughter's college fund." Or something that would be of value/interest to her.

Bedarz Iliaci writes:

There is no such right "to use her property as she wishes."

This is so because ownership itself is an entirely a law-bound thing and can exist only in a nexus of laws that is called a state of law.

The proper argument should be that this particular proposed use- "to be buried in her front yard" is not violative of the common good and should be permitted.

Andrew_FL writes:

@William-Key phrase being "the neighbor's yard"

Note your own chosen phrasing, and possessive, implying it's her property and she can do what she pleases with it. Their concerns are irrelevant, if they don't want to live near where she's buried, they should sell their property and move.

fralupo writes:

Is the property rights issue that it is complicated to set up a new cemetery in California or that the current owner wants to be buried in her front yard? The first sounds like a state impediment to a individual's using their property in a way of their choosing. Its a special case of the problems with zoning, an issue for which there are good arguments against stringent regulation.

But is it a "rights" issue for the person wanting to be buried? What if the new owner is lying about her desire to have Mrs. Worth buried in the lawn? Would failing to follow through be a violation of Mrs. Worth's rights? Assume the next owner succeeds in getting Mrs. Worth buried there but then changes her mind and wants the remains moved off-site. Do her property rights mean that she can do that or do Mrs. Worth's property rights mean she can't?

acarraro writes:

[Comment removed for supplying false email address. Email the webmaster@econlib.org to request restoring your comment privileges. We'd be happy to publish your comment. A valid email address is nevertheless required to post comments on EconLog and EconTalk.--Econlib Ed.]

mucgoo writes:

As long as the bodies remain undisturbed 6 feet under where's the externality? Possibly a water source, but unlikely.

The costs will fall on her estate as a section of the yard is essentially of limits and that stipulation will put of buyers.

Paul Bogle writes:

What if her estate isn't large enough to insure the provision of "perpetual care"? I can imagine a scenario where the property cannot be sold and the resources for upkeep eventually run out. If this were to occur local property owners would need to pay for the upkeep or live with the derelict property in their midst, or the burden could fall on the local taxpayers if the property were seized for unpaid taxes etc.

The more important question in my mind is when the right to use the property for human burial became restricted. If the woman acquired the property with the restriction in place she has suffered no loss of rights. If on the other hand she once had that right but it was later removed it seems to me she has suffered a takings and is entitled to compensation.

Njnnja writes:

There seems to be a bit of a paradox here, since nobody can be buried on their own property, since a dead person doesn't own property ("You can't take it with you").

Clearly there is an emotional component here because it is currently her property and she is talking about burying herself, but perhaps we should be thinking about the simpler case, of where, say, I want to bury somebody else in my front yard. I'm pretty sure we don't allow that much freedom of property rights, so just because it will be her estate (and potentially her heirs) who do the burial, the answer should be the same.

So for people who think this is OK, I think you first have to figure out why society doesn't allow one-person cemeteries in residential front yards, and argue against that first. I'm sure that there is something about negative externalities, blah blah blah, but I bet the actual reason that it isn't allowed is because it is creepy, and in democracies we don't allow people to do creepy things. It's not right, but in the grand scheme of things mobs have been known to do a lot worse to minorities so it's tough to get all worked up about this infringement of property rights.

JK Brown writes:

A burial on property is not a trivial matter. A grave is an incumbrance that exists in perpetuity. In my current state, TN, an access easement automatically attaches to a grave, new or historical. And obviously, excavation and building over the grave is restricted and subject to challenge by those with an legal interest in the grave, family, tribe, etc. In any case, a grave is a real land feature that must continue in the land records and will impact future improvements and uses. The state has an obligation to record and maintain the record and with planning commissions and such, an interest in controlling such encumbering uses of the land. One presumes once laid to rest, this woman wishes to lay undisturbed?

The state does seem to have created an expensive and complex procedure to record and maintain graves as real property features. But if not a corporation who will have ownership of the grave and an interest in ensuring future property owners over the coming centuries don't disturb it?

Andrew_FL writes:

@Njnnja-In the Anglosphere tradition, what is done with the property of a deceased person is for the deceased to decide while they are alive. That's where our property rights law (common law) places the presumption. Not with "You can't take it with you."

Njnnja writes:

@Andrew_FL

Sure you have the right to dispose of your property in lots of ways after you die, but you can't really exercise any other property rights. You can establish a trust, or ask the executor to do something, but it's not you exercising the right, it's them.

So let's say you wanted to put on an addition to your house or remodel a bathroom after you die (maybe you want to increase the resale value before your heirs sell it). The executor will have to obtain any permits and follow the local regulations in making those modifications. And the applications will have to be in the name of the estate, the executor or the trust; your rights are done.

Even though you can dispose of, say, your amazing coin collection, by asking to be buried with it, you don't "dispose" of your real estate, and therefore you have to think about exercising property rights there just as though it was a 3rd party trying to do it, because it will be. So if you want to be buried on your property, the right question to ask is whether you can bury any person on your property while you are still alive. And I'm pretty sure the answer to that is no.

Jay writes:

@William

For those arguing there is no externality, it seems quite odd to believe, on the one hand, that this woman can reasonably care about what happens to her body after she is dead, while, on the other hand, the people who live nearby are completely unreasonable for not wanting a human body buried in the neighbor's yard.

They're not unreasonable for "wanting" anything, they're unreasonable for getting to decide (or in this case, the government gets to decide on their behalf without asking them).

Mark Bahner writes:
In my current state, TN, an access easement automatically attaches to a grave, new or historical.

Per this website, only about one-quarter of the states (mostly in the South) have such access easements. So my guess would be California doesn't.

Gravesite access easements

But if not a corporation who will have ownership of the grave and an interest in ensuring future property owners over the coming centuries don't disturb it?

I don't understand the problem. Her estate sells the property with a stipulation that the new owner must not disturb the grave, and the contract also stipulates that the new owner must sell to the next owner with the same stipulation. How does that not work?

Mark Bahner writes:
So if you want to be buried on your property, the right question to ask is whether you can bury any person on your property while you are still alive. And I'm pretty sure the answer to that is no.

OK, so my follow-up question would be, "Can one bury a pet, such as a dog or cat, on one's property?"

I'm pretty sure the answer to that is, "Yes."

And another follow-up would be, "Can one install a septic tank on one's property?"

And I'm pretty sure the answer to that is, "It depends, but in some cases one *must* install a septic tank on one's property." (For example, if the property is not served by city sewer.)

So then the question would be, "If a septic tank and pets can be buried on property, why not a person?"

Mark Bahner writes:
What if the new owner is lying about her desire to have Mrs. Worth buried in the lawn? Would failing to follow through be a violation of Mrs. Worth's rights?

Presumably, the new owner would acquire the property from Mrs. Worth's estate. The contract to buy the property would say that the new owner must agree to bury Mrs. Worth on the property. Or, more likely, Mrs. Worth would already be buried on the property before it was sold.

For the owner to renege would be a breach of contract.

I had a similar ;-) situation with my townhome. The people from whom I bought it had allowed a neighbor to install a satellite TV antenna on their (now my) chimney. The contract I signed said I couldn't disturb the satellite antenna.

Tracy W writes:

Paul Bogle, JK Brown: what if she doesn't want perpetual care or an undisturbed rest? From the article she says she wants to fertilise the lawn. Perhaps she finds spiritual value in the thought of being part of the circle of life?

Njnnja: In the United Kingdom people can get buried on private property, if the grave is more than 10 metres from standing water, at least 50 metres from a drinking water source, and deep enough to dissaude foxes and the like from digging up the corpse. This doesn't seem to cause any problems, let alone angry mobs.

Lauren writes:

Mark Bahner, Tracy W:

By way of some background: When my 18+-year old cat died last year, I was astonished to learn that burying my own pet on my own property, where I live, is prohibited. Much less burying a person!

It may be interesting that the local laws on the U.S. East Coast, perhaps in the category of what we out here term "blue laws"--meaning old and long-standing laws on the books, often here on the East Coast in the United States stemming from moral considerations or basing themselves on religious morality, be that morality sensible or cross-religion-based or not--do prohibit a lot of private burials. Be they of the smallest of household pets or of our most beloved family members, on any kind of private property, there are often requirements to get permits; or there are preclusions altogether. Sometimes there are reasonable-sounding excuses, such as that the water table is close to the surface and could be infected by seepage from burials of humans or animals. Or fears that predatory animals could dig up the remains and spread disease. Sometimes, though, the fear of contamination is played up and overblown, or political influences promoting pet cemeteries or human cemeteries or religious interests are involved.

Often, I think, most people do go ahead and bury their small household pets on their own property, even when it is not officially allowed by local ordinances. Sometimes people have no idea there could be any rule at all! Or, many times, people who know about local rules are more aware than the local government may be about the cautions promulgated by general government authorities about the varying depth of the groundwater table or whether wild animals might dig up the remains of pets would they be buried by less than, say, the mandated 3 or 6 feet underground. Whether or not folks bury their family members or pets on their properties--well, let's not embarrass anyone. People flout the law often when the law prohibits them from doing what seems right or sensible or reasonably cost-effective. If an official pet burial or cremation at a sanctioned pet funeral home costs thousands of dollars, versus burying your beloved pet on your property for the cost of digging a deep hole--what would you do? Spend $200 to put down in its last days and cremate your child's beloved pet gerbil or goldfish legally after it dies via some abstract and unknown vet or cemetery service, or perhaps use it as a moment in educating your child about putting an animal to rest privately and lovingly?

Probably burying family members on one's own property is not done often any more. But I have to wonder, all the same: if a beloved family member dies and if you _want_ to bury that person close to you, can you? Today, I think not. Did that change because of customs and preferences, or did it change because of lobbying by local businesses and industries to instantiate laws? And if changes in laws from long ago, might new technologies or knowledge mitigate those arguments?

Maybe also see some info on pet matters here: http://blogs.findlaw.com/law_and_life/2014/09/legal-how-to-burying-your-pet.html


Mark Bahner writes:
By way of some background: When my 18+-year old cat died last year, I was astonished to learn that burying my own pet on my own property, where I live, is prohibited. Much less burying a person!

I can completely understand laws that prohibit burying a cat--and especially a person--on private property. If people in an area depends on private wells--especially shallow wells--then it good sense to prohibit burying things that might cause contamination of those wells. And in New Orleans, as I understand it, sometimes graves have a very disturbing tendency to pop out of the ground after floods (apparently due to the high water table). That would be another good reason to make sure the coffins are somewhere where they stay put.

Darby Worth seems to be very open to someone providing a good reason or reasons why she shouldn't be buried on her property. It's very unfortunate that no one seems to be able to provide the good reason(s) to her.

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