TO BE PUBLISHED IN THE OFFICIAL REPORTS 

OFFICE OF THE ATTORNEY GENERAL 

State of California 

DANIEL E. LUNGREN 

Attorney General 

______________________________________ 

OPINION : 

 : No. 98-503 

of : 

 : September 14, 

1998 

DANIEL E. LUNGREN : 

Attorney General : 

 : 

ANTHONY M. SUMMERS : 

Deputy Attorney General : 

 : 

______________________________________________________________________ 

THE HONORABLE LOUIS B. GREEN, COUNTY COUNSEL, COUNTY OF EL 

DORADO, has requested an opinion on the following questions: 

1. Is an historic Gold Rush "pioneer" cemetery that was dedicated to public use subject 

to the management and control of a county board of supervisors pursuant to (1) chapter 8 of the 

Statutes of 1854, (2) chapter 267 of Statutes of 1859, (3) chapter 73 of the Statutes of 1868, (4) 

former Political Code section 3105, (5) Civil Code section 1007, or (6) Health and Safety Code 

sections 8825-8829? 

2. What are the rights of members of the public to visit an historic Gold Rush "pioneer" 

cemetery dedicated to public use that is under the management and control of a county board of 

supervisors? 

CONCLUSIONS 

1. An historic Gold Rush "pioneer" cemetery that was dedicated to public use is subject 

to the management and control of a county board of supervisors if it is located in unincorporated 

territory and was acquired or dedicated as a public cemetery pursuant to present or preexisting 

law and such use has not been terminated. 

2. The rights of members of the public to visit an historic Gold Rush "pioneer" 

cemetery dedicated to public use that is under the management and control of a county board of 

supervisors are subject to reasonable regulations adopted by the county board of supervisors to 

protect public peace and safety. 
ANALYSIS 

We are informed that numerous "pioneer" cemeteries are located in the Gold Rush area of 

the state Footnote No. 1 which visitors to the area are interested in viewing. We are asked whether 

a county is responsible for the management and control of such cemeteries within its boundaries 

and whether members of the public have an unrestricted right to visit these historical sites. We 

conclude generally that Gold Rush "pioneer" cemeteries are under the management of a county 

and that members of the public may visit the cemeteries subject to reasonable regulations 

adopted by the county board of supervisors. 

1. Management Responsibilities 

A cemetery is either public or private, depending upon its ownership. (Health & Saf. Code. 

§§ 8250, 8250.5.) Footnote No. 2 A public cemetery that is not owned by a city or fraternal or 

beneficial association is under the jurisdiction and control of the board of supervisors of the 

county where it is located. (§ 8131.) 

In addressing the management responsibilities of a county with respect to historic "pioneer" 

cemeteries, we are asked to examine specifically a number of statutory schemes adopted by the 

Legislature since California became a state in 1850. 

A. Chapter 8 of the Statutes of 1854 

Our inquiry commences with chapter 8 of the Statutes of 1854 ("Chapter 8"), which 

provides in part: 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"Sec. 3. When grave yards are located on the public lands they shall not contain more than 

an area of five acres. 

"Sec. 4. Where the bodies of six or more persons are buried, it is hereby declared a public 

grave yard." 

It is evident that Chapter 8 did not alter the title to any land being used as a "public grave yard." 

In City of Stockton v. Weber (1893) 98 Cal. 433, the court ruled that under Chapter 8, title to the 

property remained unchanged by permitting use of the land for cemetery purposes and that the 

land was held "subject to" that use, so long as it continued. (Id., at pp. 437-438.) 

We believe that Chapter 8 merely sanctioned continued cemetery use of land that was 

utilized as a "public grave yard." It neither transferred title to the land nor created any 

management responsibilities on the part of county governments. 

B. Chapter 267 of the Statutes of 1859 
In 1859 the Legislature adopted "An act to Authorize the Incorporation of Rural Cemetery 

Associations." (Stats. 1859, ch. 267; "Chapter 267.") Under Chapter 267, cemetery associations 

were authorized to establish and operate cemeteries, selling plots to members of the public. We 

have previously considered the question whether a cemetery association formed pursuant to 

Chapter 267 was "a public cemetery." In 17 Ops.Cal.Atty.Gen. 176, 178 (1951), we concluded 

that it was not: 

" . . . [W]hile the maintenance of a cemetery is certainly a matter in which the public is 

interested, as it is interested in any other private undertaking involving the public health, welfare 

and morals, nevertheless the rights and obligations arising out of the operation of a cemetery 

association are private matters." 

Chapter 267 did not create public cemeteries over which county governments would exercise any 

management authority. The fee title to the cemetery remained in the association that formed it. 

Indeed, the purchaser of a cemetery plot obtained only a right to use the plot for cemetery 

purposes so long as such use was permitted by appropriate government authority. Upon 

withdrawal of such approval, the cemetery could be required to remove any bodies and 

discontinue the use. Since the purchaser of a plot did not have any title to it, the purchaser's 

private rights and obligations with respect to the cemetery association were unimpaired by 

governmental action terminating the cemetery use. (Hornblower v. Masonic Cemetery Assn.

(1923) 191 Cal. 83.) 

C. Chapter 523 of the Statutes of 1868 

In 1868 the Legislature enacted a statutory scheme (Stats. 1868, ch. 523; "Chapter 523") to 

implement federal law relating to the use of federal public lands. Chapter 523 authorized county 

judges to file claims to federal public lands on behalf of and in trust for the local inhabitants. A 

county judge was to cause a survey to be made, designating privately claimed lots and parcels 

and "all streets, roads, lanes, and alleys, public squares, churches, school lots, cemeteries and 

commons, as the same exist and have heretofore been dedicated in any manner to public use." 

(Stats. 1868, ch. 523, § 3; italics added.) Of particular relevance to the present inquiry was 

section 5 of Chapter 523: 

"All streets, roads, lanes, and alleys, public squares, churches, school lots, cemeteries and 

commons, surveyed, marked and platted on the map of any town site, as prescribed and directed 

by the provisions of this Act, shall be deemed and considered, and they are hereby declared to 

be, dedicated to public use, by the filing of such town plat in the office of the County Recorder, 

and shall be inalienable, unless by special order of the Board of Supervisors of the county, so 

long as such town shall remain unincorporated; and if the town shall at any time hereafter 

become incorporated, then the same shall become the property of such town or city, and shall be 

under the care and subject to the control of the . . . municipal authority of such town or city." 

Chapter 523 recognized various dedications of land for public uses, provided such uses had 

been established prior to the making of the survey. Chapter 523 did not establish or impose new 

dedications of land. Accordingly, if a cemetery existed on federal public lands prior to 1868 and 

had been dedicated to public use, that use was recognized and continued by Chapter 523 when 
the land was transferred to a county judge, provided the cemetery was shown on the plat map and 

the map was filed with the county recorder. The public dedication would be terminated only by 

appropriate subsequent action of the county or city government having jurisdiction over the 

cemetery. 

Chapter 523 was repealed in 1937 (Stats. 1937, ch. 221, § 1); however, its repeal had no 

effect on rights that had become vested prior to that time. Any cemeteries that were dedicated to 

public use prior to 1868, identified on surveys of lands claimed by a county judge pursuant to 

federal law and Chapter 523 with a plat map being filed with the county recorder, would 

continue to be public cemeteries under management and control of a city or county unless 

abandoned or sold by the governmental authority. 

D. Former Political Code Section 3105 

In 1872 the Legislature enacted former Political Code section 3105 ("Section 3105") as 

follows: 

"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." 

Former Political Code section 3106 ("Section 3106") provided: 

"Six or more human bodies being buried in one place constitutes the place a cemetery." 

Former Political Code section 3107 ("Section 3107") stated: 

"Incorporated cities or towns, and for unincorporated towns or villages, the supervisors of 

the county, may survey, lay out, and dedicate of the public lands situated in or near such city, 

town, or village, not exceeding five acres, for cemetery and burial purposes. The survey and 

description thereof, together with a certified copy of the order made constituting the same a 

cemetery, must be recorded in the recorder's office of the county in which the same is located." 

These statutes were not retroactive; they did not apply to pre-existing cemeteries. (City of 

Stockton v. Weber, supra, 98 Cal. at 438.) 

In Wana the Bear v. Community Construction, Inc. (1982) 128 Cal.App.3d 536, the court 

examined the terms of Sections 3105 and 3106 where it was argued that a Native American 

burial ground had become a public cemetery under the terms of these statutes. The court rejected 

the argument, stating: 

"Plaintiff claims that the presence of six or more bodies at the burial site in the period 

between 1854 and the time when the Miwoks were driven out (sometime between 1850 and 

1870) rendered the burial ground a 'public grave yard,' indelibly impressing it with such 

character. But the 1854 law was not incorporated into the 1872 and subsequent law, as claimed 
by plaintiff. The 1872 law did not simply reenact section 4 of the 1854 act (making a place 

where six bodies were buried a 'public graveyard'). It added a prescriptive use condition, vesting 

title of the graveyard in the city or village using it only when the land was 'used as a public 

cemetery . . . continuously, without interruption, as a burial-ground for five years.' It further 

declared that '[n]o part of [the code was] retroactive unless expressly so declared.' In Stockton v. 

Weber (1893) 98 Cal. 433, these provisions were applied to defeat a claim that a rural cemetery 

became vested in the public because the plot 'ceased to be used for the burial of the dead more 

than ten years before [the 1872] section of the code was enacted, and [when the new law took 

effect was] not being . . . used as a public cemetery.' (Id. at 438.) The Miwoks were no longer 

using the burial ground in 1873, when title VII, chapter V of the Political Code replaced the 1854 

law; therefore, the burial ground was not made a cemetery by the operation of new section 

3106." (Id., at pp. 539-541; fns. omitted.) 

Accordingly, the presence of human remains alone was not sufficient to constitute the required 

cemetery use under Section 3105. Rather, there must have been burials taking place periodically 

throughout the prescriptive period. Public prescriptive rights to a cemetery under Section 3105 

were established only where the requisite use occurred for a five-year period after 1872. If such a 

cemetery is currently located in unincorporated territory, the county board of supervisors would 

be authorized to act as trustee of the property for the "inhabitants" described in Section 3105. In 

such case, as previously indicated, the county board of supervisors would be vested with 

management and control of the cemetery. (§ 8131.) 

E. Civil Code Section 1007 

The requirements of Section 3105 were applicable only to the acquisition of title to 

privately owned lands used as a public cemetery. Acquisition of title by use of public property, 

or property dedicated to a public use, is generally not permitted. This rule is codified in Civil 

Code section 1007, enacted in 1872 and amended in 1935 to prohibit the acquisition of title by 

prescription of state land or land dedicated to public use. (Stats. 1935, ch. 519, § 1.) Civil Code 

section 1007 provides: 

"Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar 

any action for the recovery of the property confers a title thereto, denominated a title by 

prescription, which is sufficient against all, but no possession by any person, firm or corporation 

no matter how long continued of any land, water, water right, easement, or other property 

whatsoever dedicated to a public use by a public utility, or dedicated to or owned by the state or 

any public entity, shall ever ripen into any title, interest or right against the owner thereof." 

Even prior to 1935, however, adverse possession by a private party could not be asserted against 

governmental owners of land or land dedicated to a public use. (Daly City v. Holbrook (1918) 39 

Cal.App. 326; Lapique v. Morrison (1915) 29 Cal.App. 136; Howard v. Oroville (1913) 22 

Cal.App 544.) Hence, Civil Code section 1007 prohibits adverse possession by a private party of 

a "pioneer" cemetery located on land dedicated to such public use. The statute has no application 

in determining the management and control responsibilities of a county board of supervisors with 

respect to such a cemetery. 
F. Sections 8825-8829 

Acquisition of title to privately owned lands by public use is permitted under current law, 

but the law deals only with title to lands "situated in or near any city" and vests title in the 

inhabitants of the city. (§ 8126.) Section 8126, which has been in effect since 1939, does not 

impose any obligations upon a county board of supervisors. 

In 1957 the Legislature enacted a special statutory scheme (§§ 8825-8829) authorizing the 

dedication of a "pioneer memorial park." A city or county may declare a cemetery "abandoned" 

for purposes of future interment if it "threatens or endangers the health, safety, comfort or 

welfare of the public" and "not more that 10 human dead bodies have been interred therein for a 

period of five years immediately preceding the date of the resolution." (§ 8825.) After removing 

the threat or danger to the health, safety, comfort, or welfare of the public (§ 8827), the city or 

county "shall . . . dedicate such abandoned cemetery as a pioneer memorial park . . . ." (§ 8828.) 

With respect to ownership, control, and management of a pioneer memorial park, section 8828 

states in part: 

"Upon recordation of the resolution with the county recorder of the county in which the 

cemetery is located, fee title to the cemetery shall vest in the city or county as the case may be. 

The governing body may bring an action to quiet title to the cemetery, and in the absence of 

fraud the resolution and the fact of recordation shall be conclusive evidence of fee title to the 

cemetery. 

"Any county or city acquiring fee title to a cemetery under this section shall only use the 

property for the purpose of establishing and maintaining a pioneer memorial park." 

In answer to the first question, therefore, we conclude that an historic Gold Rush "pioneer" 

cemetery that was dedicated to public use is subject to the management and control of a county 

board of supervisors if it is located in unincorporated territory and was acquired or dedicated as a 

public cemetery pursuant to present or preexisting law and such use has not been terminated.

Footnote No. 3 

2. Access by Members of the Public 

The second question presented concerns the rights of members of the public to visit historic 

Gold Rush "pioneer" cemeteries that are under the management and control of a county board of 

supervisors. We conclude that the public's access rights are subject to reasonable rules and 

regulations. 

Section 7 of article XI of the Constitution provides: "A county or city may make and 

enforce within its limits all local, police, sanitary, and other ordinances and regulations not in 

conflict with general laws." The "general laws" specifically governing public cemeteries provide 

in section 8133: 
"The authorities having jurisdiction and control of cemeteries may make and enforce 

general rules and regulations, and appoint sextons or other officers to enforce obedience to the 

rules and regulations, with such powers and duties regarding the cemetery as may be necessary." 

Quoting from Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 160, the Supreme Court in 

Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 676, stated that "'[i]t has long been settled that 

[municipal police] power extends to objectives in furtherance of the public peace, safety, morals, 

health and welfare and "is not a circumscribed prerogative, but is elastic and, in keeping with the 

growth of knowledge and the belief in the popular mind of the need for its application, capable of 

expansion to meet existing conditions of modern life."'" 

The scope and terms of a county board of supervisors' regulations regarding public access to 

an historic "pioneer" cemetery would depend upon the particular circumstances. Security 

precautions may be necessary, and the board may deem it appropriate to limit public access in 

order to protect a specific historical site. 

We conclude in answer to the second question that the rights of members of the public to 

visit an historic Gold Rush "pioneer" cemetery dedicated to public use that is under the 

management and control of a county board of supervisors are subject to reasonable regulations 

adopted by the county board of supervisors to protect public peace and safety. 

* * * * * 

Footnote No. 1 

This area is also known as the Mother Lode Country and extends from Tuolomne County 

northward to Shasta County. 

Footnote No. 2 

Hereafter references to the Health and Safety Code are by section number only. 

Footnote No. 3 

A county determination to sell or abandon a cemetery would be subject to judicial scrutiny if 

challenged as a violation of the terms of the public trust under which it was held. (Cf. County of 

Orange v. Heim (1973) 30 Cal.App.3d 694.)