              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-51

                               Filed: 16 August 2016

Pender County, No. 12-CVS-000794

ROBERT KING, ANN KING, MARGARET WHALEY, and A. WILLIAM KING,
Plaintiffs,

             v.

PENDER COUNTY, MARIANNE ORR, and ROBERT ORR, Defendants.


      Appeal by Defendants from judgment entered 26 August 2015 by Judge W.

Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 6

June 2016.


      Shipman & Wright, LLP, by W. Cory Reiss and Gary K. Shipman, for the
      Plaintiffs-Appellees.

      Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey, for the Defendants-
      Appellants.



      DILLON, Judge.


      Marianne and Robert Orr (“Defendants”) appeal from the trial court’s grant of

Plaintiffs’ request for declaratory judgment. For the following reasons, we affirm.

                                   I. Background

      This matter stems from a long-standing dispute concerning a family cemetery

located on Defendants’ property. This dispute has been the subject of numerous

appeals to this Court.    A comprehensive factual background of the dispute is
                                   @CASE NAME SHORT TITLE

                                        Opinion of the Court



discussed in our opinion from the first appeal. See King v. Orr, 209 N.C. App. 750,

709 S.E.2d 602 (2011) (unpublished) (“King I”).

       The facts relevant to this appeal are as follows:                 Robert King, Margaret

Whaley, and A. William King (“Plaintiffs”) are descendants of the individuals interred

in the cemetery (the “King Family Cemetery”) located on property now owned by

Defendants, who are not related to the King family. In 2012, the Pender County

Board of County Commissioners granted consent to Defendants to disinter and

relocate the bodies located in the King Family Cemetery pursuant to N.C. Gen. Stat.

§ 65-106 (2011).1

       Plaintiffs subsequently filed for a declaratory judgment, requesting that the

trial court review the Commissioners’ decision. In 2014, the trial court entered a

declaratory judgment in favor of Plaintiffs, concluding as a matter of law that the

Commissioners’ grant of consent was based on an improper interpretation of N.C.

Gen. Stat. § 65-106, that it was unreasonable, arbitrary, and irrational, that it

violated previous court decisions, and that it constituted an abuse of discretion. In

King v. Pender County, ___ N.C. App. ___, 775 S.E.2d 695 (2015) (unpublished) (“King

V”), we reversed the trial court’s judgment and remanded the matter to allow the trial

court to make a specific finding as to whether the cemetery was “abandoned,” in



       1 N.C. Gen. Stat. § 65-106 allows for the disinterment, removal, and reinterment of graves with
the consent of the governing body of the municipality or county in which an abandoned cemetery is
located. See N.C. Gen. Stat. § 65-106(a)(4).

                                                -2-
                              @CASE NAME SHORT TITLE

                                   Opinion of the Court



accordance with N.C. Gen. Stat. § 65-106(a)(4) and § 65-85, and to modify its findings

of fact and conclusions of law, if necessary.

      In August 2015, the trial court again entered a declaratory judgment in favor

of Plaintiffs, specifically finding that Plaintiffs are “persons ‘with legal right to the

real property[,]’ ” and that “the cemetery is not an ‘abandoned cemetery.’ ”

Defendants timely appealed.

                                      II. Analysis

      We agree with the trial court that Plaintiffs are “person[s] with legal right to

the real property” and that they have not “abandoned” the cemetery. Therefore, we

affirm the judgment of the trial court.

      N.C. Gen. Stat. § 65-106 allows for “any person, firm, or corporation who owns

land on which an abandoned cemetery is located[,] after first securing the consent of

the governing body of the municipality or county in which the abandoned cemetery is

located[,]” to “effect the disinterment, removal, and reinterment of graves.” N.C. Gen.

Stat. § 65-106(a)(4) (emphasis added). That is, landowners have the right to remove

graves from their property where the graves have been “abandoned” so long as they

follow certain procedures. “Abandoned” is defined in Chapter 65 as: “[c]eased from

maintenance or use by the person with legal right to the real property with the intent

of not again maintaining the real property in the foreseeable future.” N.C. Gen. Stat.

§65-85(1) (2011) (emphasis added).



                                          -3-
                              @CASE NAME SHORT TITLE

                                   Opinion of the Court



      When interpreting N.C. Gen. Stat. § 65-106 and § 65-85(1), we must first look

to the “plain words of the statute.” Elec. Supply Co. of Durham, Inc. v. Swain Elec.

Co., Inc., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). “Moreover, we are guided by

the structure of the statute and certain canons of statutory construction. . . . An

analysis utilizing the plain language of the statute and the canons of construction

must be done in a manner which harmonizes with the underlying reason and purpose

of the statute.” Id.

      Here, we conclude that Plaintiffs are persons “with legal right to the real

property,” notwithstanding the fact that they do not hold a fee or leasehold interest

in the real property. To hold that persons “with legal right” include only those who

own the property would render the statute’s requirement that the cemetery be

“abandoned” almost meaningless:        it is the owner who seeks consent from the

government to remove the graves. Further, it would ignore the provision in the same

Chapter providing a mechanism by which descendants can obtain a court order

recognizing their right to access the property of another to visit and maintain the

graves of their ancestors. See N.C. Gen. Stat. § 65-102.

      Our Supreme Court has long recognized that persons, other than the holder of

the fee and leasehold interest, may have “legal right to real property.” For example,

the right to hunt or fish on the land of another is considered an interest in real estate

subject to our Statute of Frauds, set forth in N.C. Gen. Stat. § 22-2, as is the right to



                                          -4-
                              @CASE NAME SHORT TITLE

                                   Opinion of the Court



remove timber or extract coal. See Council v. Sanderlin, 183 N.C. 253, 257-58, 111

S.E. 365, 367 (1922). Further, our Supreme Court has long recognized the right to

use another’s land in the form of an easement. See Davis v. Robinson, 189 N.C. 589,

598, 127 S.E. 697, 702 (1925) (describing appurtenant easements and easements in

gross).

      And, relevant to the present case, our Supreme Court has long recognized the

right of certain descendants to enter upon the land of another to visit and maintain

the graves of their ancestors, stating as follows:

             Persons having a right to protect private cemeteries or
             graves therein may erect a fence around the cemetery[,] . . .
             [and] any member of a family whose dead were buried in a
             family cemetery might enjoin the removal of a fence or an
             interference with any portion of the cemetery. However,
             any one or more of the heirs of persons buried in a private
             cemetery may prevent an interference with the rights held
             in common.

Rodman v. Mish, 269 N.C. 613, 616, 153 S.E.2d 136, 138 (1967) (internal citations

omitted) (emphasis added). This right is rooted in the long-held view that landowners

do not have an unfettered right to remove graves that are located on their land, as

expressed by our Supreme Court in the 1800s:

             [A landowner] had not the right to remove the dead bodies
             interred there, or the memorial stones erected by the hand
             of affection and respect . . . .Causes might arise that would
             require and justify the removal of dead bodies from one
             place of interment to another, but such removal should be
             made, with the sanction of kindred, in a proper way, or by
             legislative sanction.


                                          -5-
                             @CASE NAME SHORT TITLE

                                  Opinion of the Court




State v. Wilson, 94 N.C. 1015, 1020 (1886) (emphasis added). In the 1900s, the Court

reiterated this view:

             Courts are reluctant to require disturbance and removal of
             bodies that have once been buried, for courts are sensitive
             to all those emotions that men and women hold for sacred
             in the disposition of their dead. . . . The aversion to
             disturbance of one’s remains is illustrated by
             Shakespeare’s choice of his own epitaph:

                    Good friend, for Jesu’s sake forbear
                    To dig the dust enclosed here.
                    Blest be the man that spares these stones,
                    And curst be he that moves my bones.

Mills v. Carolina Cemetery, 242 N.C. 20, 27, 86 S.E.2d 893, 898 (1955) (internal marks

omitted).

      More recently, in 1987, our General Assembly enacted N.C. Gen. Stat. § 65-

102, providing a procedure by which certain persons may obtain a court order

recognizing their right to access the private lands of others in order to maintain

graves and cemeteries located thereon.

      In the present case, Plaintiffs did obtain an order, pursuant to N.C. Gen. Stat.

§ 65-102, allowing them access to Defendants’ property in order to maintain and visit

the King Family Cemetery. And we note that during the course of this dispute, we

have held that Plaintiffs have rights “in and to the cemetery.” King I, 209 N.C. App.

750, 709 S.E.2d 602, 2011 WL 32295 at *3. This conclusion was the basis of our

Court’s decision in King I that Plaintiffs, “as members of a family whose dead were


                                         -6-
                              @CASE NAME SHORT TITLE

                                    Opinion of the Court



buried in the [King Family Cemetery], are entitled to enjoin the removal of the fence

or the interference with any portion of the cemetery.” King V, ___ N.C. App. ___, 775

S.E.2d 695, 2015 WL 379303 at *3 (citing King I, 209 N.C. App. 750, 709 S.E.2d 602,

2011 WL 32295 at *9). This decision was reaffirmed in King V when this Court held

that “based on [precedent], the binding language in King I, and the uncontested fact

that [P]laintiffs are members of the King family,” Plaintiffs suffered an injury in fact

and therefore had standing to bring a declaratory judgment action. Id. at *3.

                                     III. Conclusion

      Plaintiffs qualify as “person[s] with a legal right” to the King Family Cemetery.

This litigation first arose as the result of Plaintiffs’ attempts to maintain and protect

the King Family Cemetery.          The record contains evidence that Plaintiffs have

consistently maintained or attempted to maintain the King Family Cemetery

throughout the long history of this litigation and that Plaintiffs intend to continue to

maintain it in the future. Therefore, because Plaintiffs qualify as “person[s] with

legal right” and Plaintiffs have not abandoned the King Family Cemetery, we affirm

the judgment of the trial court.

      AFFIRMED.

      Chief Judge McGEE and Judge STROUD concur.




                                           -7-
