“Cemeteries are to be regarded as inviolate, and their use appropriated as a sacred place, consecrated by the elements of taste and affection, to be preserved from profanation through every mutation of human creeds, as well as from the baser conquests of Mammon.”
In 2009, after the City of Stevenson denied his application to put a cemetery on his property, James Davis and his son-in-law fired up a backhoe anyway and buried Davis’ late wife of forty-eight years just off Davis’ front porch. City attorney Parker Edmiston then sued Davis on Stevenson’s behalf in Clark County Circuit Court. Edmi
ston sought to force Davis to move the body from his property to a local cemetery. On March 30, 2012, Circuit Judge Jennifer C. Clark, citing Alabama law, ordered the body removed, concluding that “[t]he owner of property within the corporate limits of a city has no unqualified right to use his property for purposes of a cemetery.” Mr. Davis then filed a post judgment motion in which he argued that his family burial plot was not, in fact, a cemetery, and therefore the state statute describing the process for seeking approval to “locate a cemetery” did not apply. In support of this argument, Mr. Davis offered a statutory definition of “cemetery” under the “Burial Services, Merchandise, and Property” section of the Alabama Code, which excluded “family burial plots” from its definition. The court rejected Davis’ new argument, saying, among other things: “a family burial plot is a cemetery but is a cemetery that is not regulated by the consumer law and commercial protection statute;” and that Davis was reading the statute’s definition out of context. Mr. Davis has been unsuccessful in his legal appeals to date.
Though Mr. Davis’ actions may seem odd, they are not abnormal. The fact that front yard burial plots are not unheard of in Alabama is indicative of a deeper right —or least a perceived right—that is rooted in history. American courts have long acknowledged a reverence for the dead and the permanence of their final resting places. As one North Carolina Supreme Court opined, “Civilized countries have always recognized and protected as sacred the right to Christian burial and to an undisturbed repose of the human body when buried.”Thus, in the early days when churchyards were not geographically convenient, American frontiersman resorted to interring loved ones on family burial grounds. Surrounded by “neat white pailings” or other similar enclosures, generations of Americans were buried at home on private property, their graves serving as “symbols of civilization and domestication.”
Because of this well-documented tradition, Mr. Davis’ case deserves more than a cursory glance. Alabama law addresses Davis’ claims in more depth than the Clark County Circuit Court has acknowledged. Admittedly, the states plenary authority generally, and, more specifically, the constitutionality of Alabama Code §22-20-4 under which the circuit court decided Davis’ case, are beyond the scope of this article. That aside, Alabama case law has acknowledged specific limits on the state’s authority to regulate family plots.
In Bryan v. City of Birmingham, the Alabama Supreme Court noted that “[b]urial places for the dead are indispensable. They may be the property of the public, devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the burial of his family or friends.” In another early opinion, the court addressed a landowner’s claim that his neighbor’s family burial plot was poisoning his well, noting initially that a burial ground is not a nuisance without a showing that it has caused injury. In its holding, the court refused to prevent future burials on a family plot without a showing of “special injury, irreparable by the ordinary remedies of law.” In this sense, perhaps early Alabama law found something unique in family burial plots that called for a showing of injury above that required by typical nuisance law.
In Mr. Davis’ case, the court relied heavily on Alosi v. Jones, which noted: “the right and power of the municipality to cause removal under some conditions is unquestioned.” On the facts of that case, the court resolved the issue of whether burials should continue in “Pine Haven Cemetery,” holding: “Our own cases, therefore, as well as authority elsewhere, fully settled the doctrine that the owner of property within the corporate limits of a city has no unqualified right to dedicate the property to purposes of a public cemetery.” In fact, this is the proposition that the court in Davis cites, reaching its judgment thereby. However, reading the Alosi opinion side by side with the Davis opinion, Mr. Davis’ argument that the city cannot regulate the grave because it is a “family burial plot” rather than a cemetery appears to be left largely unaddressed, even taking the court’s reading of §§ 22-20-4 and 8-30-1 as correct.
Given the above history setting apart an individual’s right to accord his kin a proper burial and the state’s reluctance to infringe that right, of which the above examples are but a few, Alabama courts should clarify the definition of “family burial plot” under § 22-20-4. Mr. Davis’ case presents the perfect opportunity.
 Brown v. Maplewood Cemetery Ass’n 89 N.W. 872 (Minn. 1902).
 Alabama Man Fights to Keep Wife Buried in Front Yard, Associated Press, Aug. 19, 2012, http://blog.al.com/wire/2012/08/alabama_man_fights_to_keep_wif.html.
 City of Stevenson v. Davis, No. CV-09-133, 2012 WL 3156092 (Ala. Cir. Ct. March 30, 2012)
 Ala. Code. §22-20-4 (1975)
 Ala. Code. §8-30-1 (1975)
 King v. Frame, 216 N.W. 630, 633 (Iowa 1927) (“The principle of all the cases seems to be that the buried body shall remain undisturbed, and that the right and duty falls to the next of kin to see that its repose is duly protected”)(quoting Gardner v. Swan Point Cemetery Co., 40 A. 871, 878 (RI 1898)).
 Cabe v. Parker-Graham-Sexton, Inc., 162 S.E. 223, 229 (N.C. 1932)
 C. Allen Shaffer, The Standing of the Dead: Solving the Problem of Abandoned Graveyards, 32 Cap. U. L. Rev. 479, 483-84 (2003).
 45 So. 922 (1908).
 Kingsbury v. Flowers, 65 Ala. 479 (1880)(“It is quite an error to suppose, that of itself a burying ground is a nuisance to those living in its immediate vicinity. Much depends upon the mode of interment, whether it can be justly asserted that, in any event, injury will result from it.”).
 174 So. 774, 776 (1937).
 Id. at 777(emphasis added).