Property tax assessment prevents township from controlling cemetery

Because a couple had paid taxes on the land where a cemetery existed since 1967, the township did not have authority under Indiana law to exercise control over that cemetery, the Indiana Court of Appeals affirmed Monday.

George and Zelma Bitzer purchased land in Wabash County in 1967 that contained one acre of land that previous owners Solomon and Nancy Fry deeded in 1872 “to the public” to be used as a cemetery. There is a dispute as to how many people are buried in the Belden Cemetery. The cemetery was not maintained by the township trustee and became overgrown. The cemetery was also mistakenly taxed as part of the Bitzers’ property since they purchased it. The couple cleared the area except for the grave markers of the Frys and placed a fence around it. The township trustee believed the Bitzers desecrated the cemetery, but the county prosecutor declined to prosecute.

The township then filed a complaint seeking to quiet title, establish its interest in preserving the cemetery, and recover damages for the Bitzers’ actions. The trial court granted summary judgment for the couple and denied the township’s motion.

Under I.C. 23-14-68-1, the township does not have authority over the cemetery because the Bitzers paid taxes on the assessed land on which the cemetery sits, the COA ruled.

“The statute authorizing a Township Trustee to exercise control over cemeteries located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the Township’s claims of authority over the Belden Cemetery must fail,” Judge Paul Mathias wrote in Lagro Township and Karen Pinkerton Tatro v. George E. Bitzer and Zelma E. Bitzer, 85A02-1306-PL-520.

“Although the Township makes an extensive argument that the Bitzers’ actions have desecrated the Belden Cemetery contrary to law, this is a criminal matter left to the discretion of the county prosecutor. As indicated above, to date, the County Prosecutor has declined to file charges against the Bitzers, and the claim of intentional infliction of emotional distress filed against the Bitzers was dismissed.”