Pacheco Cemetery Public Title
The California Statute that vested the title to the
Pacheco Cemetery in the public prior to 1900, was Section 3105 of the Political
Code. Enacted in 1872 and effective January 31, 1873, Section 3105 read:
SEC. 3105 Title to grounds.
3105. The title to lands used as a public cemetery or graveyard, situated in or near to any city, town, or village, and used by the inhabitants thereof continuously, without interruption, as a burial ground for five years, is vested in the inhabitants of such city, town, or village, and the lands must not be used for any other purpose than a public cemetery.
The tests required to be passed to determine if the public acquired legal title to the Pacheco Cemetery included a number factors. They are:
1. Was the Pacheco Cemetery situated "in or near to any city, town,
Answer: YES. The cemetery was located approximately one-half mile northerly from the town of Pacheco. This location qualifies the cemetery under the requirements of Section 3105, since it was "near" the town of Pacheco.
2. Was the cemetery in use by the public continuously, without
interruption, as a cemetery for five years AFTER 1872?
Answer: YES. The records of tombstones within the cemetery bear this out. From 1862 (the earliest marked grave in the cemetery today) through 1872, 12 marked graves exist. From 1873 through 1878, 18 additional interments occurred in the cemetery, with tombstones within the grounds to evidence this use by the public. This use by the public also qualifies the cemetery under the requirements of Section 3105, since the cemetery was used by the "inhabitants thereof continuously, without interruption, as a burial ground for five years" AFTER January 1, 1873, the effective date of the statute. The Supreme Court has ruled, that, because the people had NOT continued to use the cemetery after the effective date of the law, the title to it did not vest in the public. The discontinuation of it's use by the public left the title in Charles Weber, although the use of the land was restricted to cemetery purposes. [Stockton v. Weber, 1893.1]
3. Did the public consider the Pacheco Cemetery to be a public cemetery
and did it use it as if it were a public cemetery?
Answer: YES. Newspaper accounts of the 1860s are evidence that the community sought to locate a local burying ground in 1864. By 1869, the community was urged to plant trees in the "village burying ground." As there is no other cemetery in the vicinity of Pacheco dated to this period of time, there is no stronger evidence that the Pacheco Cemetery became the cemetery that was used by the community, and that it was considered by the public to be the cemetery of the community as a whole - a public cemetery.
While this is not a requirement of Section 3105, many courts have looked to how the public viewed a property in their evaluation to determine whether a piece of land was considered by the public to be openly available for public use. The public's use of a property in this way results in either an "implied in law" or an "implied in fact" dedication of the land to it's use by the public. There was an "implied in law" dedication of the Pacheco Cemetery to it's use by the public. An implied in law dedication is the more significant of the two types of implied dedication. (See the Attorney General opinion letter.)
4. Is there evidence that Thos. P. Tormey (1885), Patrick Tormey (1893) or
George P. Loucks (1857-1903) was ever identified by Contra Costa County as being
the owner and operator of the cemetery located north of the town of Pacheco, or
that either Loucks or Tormey operated the cemetery as a private burial ground?
Answer: NO. To the contrary. The Contra Costa County Tax Assessor's records show that both Thos. P. Tormey and Patrick Tormey were assessed for property that was bounded on the south by the land of "G.P. Loucks and Cemetery" (1885) and the "land of G.P. Loucks and the Pacheco Cemetery" (1893). There is no evidence the tax assessor assessed any private party for the value of the Pacheco Cemetery in the eight years between 1885 and 1894. Additionally, nothing in the Loucks' family history, published or otherwise, even hints that George P. Loucks (who executed a deed to the cemetery to the I.O.O.F. in July of 1900) ever operated, administered, or maintained the cemetery. Nor does the family maintain he ever gave specific permission for the burials to occur. Annie Loucks, George Loucks' daughter, in 1939 wrote a history of Pacheco and there is not even one mention at all of the cemetery within it!
5. Is there any record evidence the cemetery was depicted as a separate
parcel from the land which surrounded it?
Answer: YES. The 1885 Official Map of Contra Costa County shows the cemetery as a separate parcel from both Tormey and Loucks' lands. This map is signed by all five members of the board of supervisors of Contra Costa County, including Patrick Tormey, the CHAIRMAN of the board of supervisors in that year. (Seventeen years later, Tormey executed a deed to the Pacheco Cemetery to the I.O.O.F., referring to it as the "Pacheco Cemetery..."!) The Pacheco Cemetery is shown as a separate parcel on every map drawn thereafter, at least through 1899. While this also is not required by section 3105, this is striking evidence that neither Tormey nor Loucks had claimed ownership of the cemetery.
1 In Stockton v. Weber, in 1881, Charles Weber had executed a deed to a block of land which had been annexed to the corporate limits of the City of Stockton in San Joaquin County. Weber conditioned his deed to the city to include the city was required to obtain an Act of the Legislature to ensure the removal of the human remains which had been interred within the block prior to the date of Weber's deed. After Weber's death, his heir claimed ownership of the block in question, whereupon the city filed suit to quiet the title to the block in the city.
As part of it's argument, the city maintained that despite Weber's 1881 deed, the title to the block had vested in the public through operation of Political Code section 3105 by benefit of it's use as a cemetery. The Superior Court ruled in favor of the Weber family and the city appealed.
In it's opinion, the Supreme Court upheld the lower court's decision as to the effect of Political Code section 3105, citing that the block had not been used for burials after 1862 (the year that Stockton's Rural Cemetery was established after the heavy flooding that January). Political Code section 3105 did not become effective until January 1, 1873. Therefore, since the public had not used the cemetery as a burying ground after that date, the prescriptive use by the public ("continuously, without interruption, as a burying ground for five years...") required under section 3105 had not been met, and the title to the cemetery could not have vested in the public under that law.
Had the public continued to use the cemetery after 1862 until the date of Weber's deed in 1881, the public would likely* have acquired the legal title to the cemetery be benefit of it's continuing use.
* Part of the argument made by the Weber family was the Charles Weber "permitted" the burials to occur while making no warranty to the families who used it as to the length of time the remains would be allowed to rest in his ground. Because of this, the use might have been viewed by the court to have been permissive; subject to the approval of Mr. Weber. In that case, section 3105 could have had no effect as against Weber's title.