Wana the Bear v. Community Construction, Inc.
128 Cal. App. 3d 536 · California Court of Appeal · 1982
Facts
After a final subdivision map was approved on August 6, 1979, defendant Community Construction, Inc. began excavating property in Stockton for a residential tract. In the fall of 1979, the defendant uncovered human remains and continued development, disinterring over 200 bodies. The site was an ancient burial ground used by the Miwok Indians until they were driven out between 1850 and 1870, and it still contains the remains of six or more persons. Plaintiff Wana the Bear, a descendant of the Miwok Indians related to the buried individuals, filed suit on July 1, 1980, to enjoin further excavation and desecration.
Procedural history
The case arose from the trial court's granting of the defendant's demurrer. The trial court sustained the demurrer without leave to amend, leading to a judgment of dismissal. The plaintiff appealed from this resulting judgment.
Issue
Did the ancient Miwok burial ground achieve protectable status as a public cemetery under the 1872 California cemetery law, by virtue of its prior status as a public graveyard under the 1854 law?
Holding
No, the burial ground did not achieve protectable status as a public cemetery under the 1872 cemetery law.
Rule
The 1854 law, which defined a public graveyard as a place where six or more bodies were buried, was not incorporated into the 1872 and subsequent cemetery laws. The 1872 law introduced new requirements for creating a public cemetery, specifically dedication or prescriptive use (continuous use as a burial ground for five years), and explicitly stated it was not retroactive unless declared. Since the Miwok burial ground was not in continuous use as a cemetery when the 1872 law took effect, it did not gain public cemetery status under the new statute.
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