The discovery of shallow graves upon a home site caused the buyers of the lot to sue the developer. Although the trial court ruled that the suit was barred by a statute of limitations, the Maryland appellate courts held otherwise.

In 1944, a developer purchased a 200 acre farm in Bishopville, Maryland, with the intent of subdividing it into 150 residential building lots. In 1960, the developer recorded restrictive covenants for the subdivision that included a prohibition against graveyards in the subdivision. In 1975, the developer sold Lot 96 to the initial purchaser. The lot was subsequently transferred twice more before Mr. And Mrs. Carven purchased the property and built a home upon the lot in 1986.

Eight years after the house was built, Mrs. Carven was told by neighbors that her house was built upon a graveyard. After learning of the old graveyard, the Cravens located several shallow graves on their lot, with the remains of caskets just two feet below ground level.

The Carvens sued the surviving developer, asserting a variety of legal theories. The developer’s attorneys responded that all claims were barred by limitations contained in Maryland Code, Courts and Judicial Proceedings Article, § 5-108(a), which provides: “… no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.”

The trial court held that the statute precluded the Carvens’ claims, reasoning that the developers had created an “improvement” of the farm property by subdividing the lots, and creating streets and utilities. Since the Carvens’ suit was not initiated within 20 years after the subdivided lots became available, the trial court held that the suit had not been filed within the statutory time limit.

The Court of Special Appeals reversed that dismissal. Carven v. Hickman, 135 Md. 645, 763 A.2d 1207 (2000), as did the Court of Appeals of Maryland.

The Court of Appeals focused on the statute’s use of the term “improvement.” The Court stated:

“[T]here can be no doubt but that the subdivision of the 200-acre farm through the recording of subdivision plats, the building of streets and canals, and the installation of utilities constituted improvements to the tract and to that part of the tract that became Lot 96. As noted, however, the injuries alleged by the Carvens do not arise from any of those improvements. They are not complaining about the roads, canals, or utilities.

“Here, the Carvens complaint relates solely to the graveyard found on Lot 96. Under our definition, developing or using land for a graveyard may enhance the value, beauty, or utility of vacant land. But the [developers] did not create or extend the graveyard, so it could not be regarded as an improvement they created. The conduct at issue is the desecration of the existing graveyard – the removal of monuments, markers, and other evidence denoting the existence of the graveyard, which effectively concealed the existence of the graveyard. That, the Carvens maintain, cannot constitute an improvement to the land.”

After reciting a long list of Maryland statutes that protect burial sites, the Court stated, “Although those impediments do not preclude the positive development of land for use as a graveyard from being regarded as an improvement, they clearly preclude the desecration and conseuquent concealment of an existing graveyard from being considered an improvement. … Under no stretch of the imagination can Lot 96 be said to have been improved by [the developers’] alleged concealment of the burial sites.”

The Court concluded: “As the injuries claimed by the Carvens do not, therefore, result from the defective and unsafe condition of ‘an improvement to real property,’ § 5-108(a) does not apply and does not bar this action.” The case will go back to the trial court for further proceedings.

Hickman v. Carven, 366 Md. 362, 784 A.2d 31 (November 5, 2001).

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