Davis v. May

Because the appellee had a common law right of ingress and egress to reach the cemetery, no taking occurred, and Texas Health and Safety Code �711.041 is constitutional as applied to the facts presented in the instant case.

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Click here for the full text of this decision FACTS:Emmit and Debra Davis appeal the trial court’s judgment granting Marsha May and individuals related to the decedents buried in a private cemetery a right of ingress and egress across the Davis’ land which surrounds the cemetery. May’s husband requested Debra Davis’s permission to visit the cemetery and later to clean the brush away from the cemetery. Although the Davises granted May permission, Debra Davis’s brother, Steve Callaway, later told the Mays that they were trespassing and made them leave. May sued the Davises to obtain a right of ingress and egress to the cemetery. The Attorney General of Texas intervened to address the constitutionality of Texas Health and Safety Code �711.041 and to represent the rights of the members of the general public who were related to the decedents. The trial court initially granted a partial summary judgment declaring that �711.041 was constitutional. A jury trial was then held, and the jury found: 1. the Alexander Cemetery had no public ingress and egress; 2. a reasonable right of access for purposes usually associated with cemetery visits would be once a month for four hours; 3. the route of ingress and egress requested by May was reasonable, while the route designated by the Davises was not reasonable; 4. the purposes usually associated with cemetery visits include preserving the graves and markers, paying respects to the persons buried in the cemetery, meditating and praying, resetting headstones on graves, and conducting maintenance by mowing weeds and grass and removing vegetation; however, placing a border around the graves was not a purpose usually associated with cemetery visits. Based on the jury’s findings, the trial court entered a judgment permitting May and any other individual related to the decedents to visit the Alexander Cemetery once a month for a four hour period using the route of ingress and egress the jury found to be reasonable for the purposes the jury found were usually associated with cemetery visits. The judgment incorporated the earlier partial summary judgment upholding the constitutionality of �711.041. HOLDING:Affirmed. Section 711.041(a) provides, “Any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds. This right of access extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits.” Section 711.041(b) further provides, “The owner or owners of the lands surrounding the cemetery or private burial grounds may designate the routes of reasonable ingress or egress.” Because May and the other relatives of the decedents have a common law right of ingress and egress and because the Davises’ title to the property was already burdened by this common law right, neither �711.041 nor the trial court’s ruling resulted in a “taking” of the Davises’ property under the facts as presented. As a result, �711.041 is constitutional as applied in this case, and no taking occurred. OPINION:Lopez, C.J.; Lopez, C.J., Stone and Green, JJ.

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