The Coastal Post - October, 1999

The Grave And The Driveway

By Tink Thompson

When Jennifer Elizabeth Herbert was buried in our cemetery in August 1997, no one close to her ever imagined her grave would soon be all but run over by the banked turn of a private driveway. Less than a year later this happened.

How? Why? Aren't there laws to prevent such things? What's the story here?

Bill Albright lived near the cemetery in a house on the curve of Olema-Bolinas Road. Back in 1980, Jack Siedman sued him on behalf of some parents who had buried their children in the cemetery. The lawsuit said Albright wanted the parents to pay him to do other things because he claimed he owned part of the cemetery. Albright repeated the claim in a declaration filed in the lawsuit, stating that he had inherited cemetery property from the estate of Jack Strain. When it turned out that Albright's claim was false (he'd inherited cemetery land from no one) and a title search proved that all cemetery land was owned by various churches, Albright's defense collapsed. His attorney agreed to settle the lawsuit by paying the parents $20,000 and by Albright giving up all claim to cemetery land by executing something called a "Quit-Claim."

The attorneys and Albright met in judge's chambers to seal the agreement. Here, for the first time, Albright appealed for an access across the cemetery, pleading that without such access he'd be "land-locked" in his back pasture. Since for decades Jack Strain had used another driveway to get to his back pasture, Albright's claim was questionable at best. In addition, Jack Siedman had argued effectively in the lawsuit that Albright was entitled to nothing, that "there was no easement to preserve." To settle the case, however, Siedman acceded to Albright's plea. He agreed to give him an access easement across cemetery land, but the location of that easement and its width would have to be negotiated with a Cemetery Corporation to be formed.

This settlement of a private lawsuit became a landmine which lay dormant for ten years. In 1993, through an incredible comedy of errors, it became the basis for the private driveway that nearly ran over Jennifer Elizabeth Herbert's coffin.

But you say, "Wait!"-Jack Siedman owned no cemetery land. Nor did his clients. Nor did Bill Albright. How do any of these people manage to get together and give away something they never owned-namely, an easement across the cemetery? Good point. Legally, they were not able to give away anything. Their settlement is binding on no one but themselves. It's important, however, to note that Albright was forced to execute a "Quit-Claim" not a "Grant Deed."

A Grant Deed is used to convey real estate. Another name for it is "Warranty Deed" because the grantor-the seller-warrants that he/she owns what is being conveyed to the grantee-the buyer. On the other hand, a Quit-Claim is called a "wild deed" because the person signing a Quit-Claim doesn't have to own what is Quit-Claimed. You can Quit-Claim your non-existent Rolls Royce to cousin Bertha and never get in any trouble for doing it; all you did was give her your claim to something you may or may not own which may or may not exist. Likewise, here. Albright wasn't required to execute a Grant Deed for cemetery property because he couldn't-he never owned it. But a Quit-Claim would do just fine for giving up his claim to something he never owned.

For ten years nothing happened. During this whole period, the sale of Albright's back pasture could not have carried an easement since nothing had been recorded. In a sense, then, the landmine created by the settlement had not been armed. It lay dormant and harmless for this long period.

Finally in 1993, a cemetery corporation was formed. Its Board was made up of Albright and volunteers, none of whom were trained in the law or especially familiar with real estate transactions. Albright executed his Quit-Claim to cemetery land and the Board never inquired as to who really owned the land they'd been appointed to protect. Even more importantly, they never recognized the invalidity of the Quit-Claim Albright gave them, a Quit-Claim which established a 40-foot easement right over the graves of the children who were the subject of the lawsuit!

Had they asked, they would have found that Albright's Quit-Claim had no legal force for two compelling reasons: (1) the settlement which contained it was itself invalid because the owners of the land (the churches) had not been parties to it; (2) even if the settlement had been valid the easement was invalid because it was not in accordance with the settlement.

By executing his Quit-Claim, Albright armed the landmine which so long had lain dormant. What the Board never found out was that the landmine-armed or not-was only a dud. Ironically, it could become dangerous only if no questions were asked about it-only if the Board remained deaf, dumb and blind to everything concerning it.

In the summer of 1994, June and Alex Kleider bought Albright's back pasture and asked the Board, "Isn't it true we have an easement over your property?" Once again, the Board apparently asked no questions, consulted no attorney, took their papers to no real estate specialist, carried out no title search. They told the Kleiders, "Sure. Build your driveway across our cemetery."

Bill Albright, however, was no dummy. On the Grant Deed conveying the property to the Kleiders, he crossed out the easement and initialed it. Then he gave the Kleiders a Quit-Claim for it which referenced the invalid Quit-Claim he'd given the Cemetery Board a few months before. This meant he could not be sued if the Cemetery Board got wise to the fact that no legally valid easement lay across their property. Perhaps inadvertently, the Kleiders showed the Board only their Quit-Claim, never turning over the recorded Grant Deed with the crossed-out easement. The Board first saw this document with the crossed-off easement four weeks ago.

The Kleiders were happy they could build their driveway across the cemetery. The traditional entrance to their property was from Olema-Bolinas Road. This was the way Jack Strain had gotten into his back pasture for decades. In the 1980s, Bill Albright scraped Strain's old farm road and built a culvert and a gate where it met Olema-Bolinas Road. This however, would be an expensive entrance for the Kleiders. A small seasonal spring lay in the vicinity and retaining walls probably would have to be built. It would be cheaper to come in through the cemetery. They were pleased when the Board agreed that they could come in through the cemetery.

The Board, however, violated their own Articles of Incorporation and By-Laws in making this possible. Since the Board was under no legal obligation to grant an easement to the Kleiders, the 1998 Grant Deed doing this constitutes a gift. Such a gift of cemetery land to a private party is specifically prohibited by Article VII of the corporation's Articles of Incorporation. In essence, the Board did what they were specifically prohibited from doing. Secondly, there is no indication in the Board minutes that anything was done, a specific requirement of any Board action.

This is a story with no villains or heroes. Confusion rules. But the consequence of that confusion is a private driveway that comes perilously close to Jennifer Elizabeth Herbert's grave-a private driveway which destroys the integrity of our 135-year-old cemetery.

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