Court: Cemetery previously cared for by Berkshire is Galena’s

By Gary Budzak -

In a decision issued on Friday, Delaware County Court of Common Pleas Judge David M. Gormley ruled the Village of Galena is responsible for the care and maintenance of Galena Cemetery.

Galena was the plaintiff in a case filed against Berkshire Township, who had previously maintained the cemetery from 1832 until August 11, 2015. Berkshire then determined “that it is not legally responsible for the cemetery it has been maintaining,” Gormley wrote in his judgment.

“Defendant Township now claims that it has no legal authority to care for and maintain the cemetery because the cemetery is located completely within the Village of Galena,” Gormley wrote.

The village filed a complaint last September; and the township filed a counterclaim last December.

Gormley’s decision rested on the location of the cemetery.

“Although Ohio courts have not specifically addressed which entity is vested with title and right of possession of a township-owned cemetery once the cemetery property becomes part of an incorporated municipality, several opinions of the Ohio Attorney General have addressed this issue,” Gormley wrote.

The Attorney General “has treated this situation as similar to one in which annexation causes a cemetery owned by a township to become part of a municipality,” Gormley continued. “When that happens, the municipality becomes the cemetery’s owner.”

Galena was incorporated as a municipality in 1920.

“The Attorney General also opined that it is irrelevant whether or not the municipal corporation wishes to accept the cemetery property,” Gormley wrote.

Cited in the judgment was a 1994 case in which Potsdam Cemetery in the Village of Potsdam (near Dayton) was ruled to be in the possession of Potsdam, even though a portion of the cemetery was deeded to Union Township.

The judgment went on to say “even though there is not an abundance of authority on this issue,” the guidance is consistent.

“Because Galena Cemetery is located in the Village of Galena, the title to, right of possession, and responsibility for the maintenance and care of Galena Cemetery is vested in the Village of Galena,” Gormley concluded.

Remaining claims on cemetery records and a transfer of funds for the care of the cemetery will go before the court on Dec. 6.

By Gary Budzak

Gary Budzak may be reached at 740-413-0906 or on Twitter @GaryBudzak.

Gary Budzak may be reached at 740-413-0906 or on Twitter @GaryBudzak.