James Davis
is fighting to keep the remains of his late wife right where he dug her
grave: In the front yard of his home, just a few feet from the porch.
Davis said he was only abiding by
Patsy Ruth Davis' wishes when he buried her outside their log home in
2009, yet the city sued to move the body elsewhere. A county judge
ordered Davis to disinter his wife, but the ruling is on hold as the
Alabama Civil Court of Appeals considers his challenge.
Davis, 73, said he never expected such a fight.
"Good Lord, they've raised pigs
in their yard, there's horses out the road here in a corral in the city
limits, they've got other gravesites here all over the place," said
Davis. "And there shouldn't have been a problem."
While state health officials say family burial plots aren't uncommon
in Alabama, city officials worry about the precedent set by allowing a
grave on a residential lot on one of the main streets through town. They
say state law gives the city some control over where people bury their
loved ones and have cited concerns about long-term care, appearance,
property values and the complaints of some neighbors.
"We're not in the 1800s any
longer," said city attorney Parker Edmiston. "We're not talking about a
homestead, we're not talking about someone who is out in the country on
40 acres of land. Mr. Davis lives in downtown Stevenson."
A strong libertarian streak runs
through northeast Alabama, which has relatively few zoning laws to
govern what people do with their property. Even a neighbor who got into a
fight with Davis over the gravesite — Davis said he punched the man —
isn't comfortable with limiting what a homeowner can do with his
property.
"I don't think it's right, but
it's not my place to tell him he can't do it," said George W.
Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my
life on the line so he would have the right to do this. This is what
freedom is about."
Westmoreland declined to discuss his specific objections to the grave.
It's unclear when the appeals
court might rule. Attorneys filed initial papers in the appeal on
Friday. The decision could come down to whether the judges believe the
front-yard grave constitutes a family plot that requires no approval or a
cemetery, which would.
In the meantime, Davis has
protested by running for City Council. A campaign sign hangs near a
bigger sign in his yard that says: "Let Patsy Rest in Peace."
A law professor who is familiar
with the case said it's squarely at the intersection of personal rights
and government's power to regulate private property. While disputes over
graves in peoples' yards might be rare, lawsuits over the use of
eminent domain actions and zoning restrictions are becoming more common
as the U.S. population grows, said Joseph Snoe, who teaches property law
at Samford University in suburban Birmingham.
"The United States Supreme Court
has said that the states, and the cities through the states, have the
power to regulate. But if it goes too far ... then the government's got
to pay, and there are certain things the government just doesn't have
the power to do," he said. "As we get bigger and as government gets
bigger and as people are more regulated ... you start having more and
more disagreements."
Davis, a longtime carpenter, built the family's home on a corner on
Broad Street about 30 years ago in Stevenson, a town of about 2,600 in
northeast Alabama. Once a bustling railroad stop, the city is now so
quiet some people don't bother locking their doors. Stars twinkle
brightly in the night sky; there aren't many lights to blot them out.
Davis first met Patsy when she was a little girl. They were married
for 48 years, but she spent most of her final days bedridden with
crippling arthritis. Seated on a bench beside her marble headstone and
flower-covered grave, Davis said he and his wife planned to have their
bodies cremated until she revealed she was terrified by the thought.
"She said this is where she
wanted to be and could she be put here, and I told her, 'Yeah,'" Davis
said. "I didn't think there'd be any problem."
There was, though. A big one.
After his wife died on April 18, 2009, the City Council rejected
Davis' request for a cemetery permit. The decision came even though the
county health department signed off on the residential burial, saying it
wouldn't cause any sanitation problems.
Ignoring the council's decision, Davis said he and a son-in-law
cranked a backhoe and dug a grave just a few feet from the house. A
mortuary installed a concrete vault, and workers lowered Patsy's body
into the plot in a nice, metal casket.
The city sued, and the case went
to trial early this year. That's when a judge ordered Davis to move his
wife's remains to a licensed cemetery. That order is on hold to give the
state appeals court time to rule.
For now, Davis visits his wife's grave each time he walks out the
front door. He puts fresh artificial flowers on it regularly, and he
washes off the marker when raindrops splatter dirt on the gray stone. At
Christmas, he said, he and other relatives hold a little prayer vigil
around the grave, which is beside an old wooden garage.
Edmiston said the man rejected several compromises from the city, including the offer of two plots in the municipal graveyard.
While state officials say they
don't know how many people might be buried on residential lots in
Alabama, burials on private property in Alabama are not uncommon, said
Sherry Bradley, deputy environmental director for the state Department
of Public Health.
While the state can regulate
cemeteries, Bradley said it doesn't have any control over family burial
plots. The city contends the grave at Davis' home is an illegal cemetery
that falls under government oversight, said Edmiston, the city lawyer.
If nothing else, Edmiston said,
the appeals court might decide what constitutes a "family burial plot"
in Alabama, and what's a cemetery.
"It would be far-reaching if they say anyone can bury someone in their front yard if there are no drainage issues," he said.
As it is, Davis said his five
children will bury him in the yard beside Patsy after he dies, and they
and his 15 grandchildren will care for the property from then on.
"That's my perpetual care," said Davis, referring to the city's worry about what the grave will look like after he dies.
Davis is adamant that he won't move the body, regardless of what any court says.
"If they get it done it'll be
after I'm gone," said Davis. "So if they order her to be moved, it's a
death sentence to me. I'll meet Mama sooner than I planned on it."