180 Cal. Rptr. 423 (Ct. App. 1982)
Plaintiff, a descendant of a tribe, sought reversal of the lower court's granting of defendant construction company's demurrer without leave to amend on his attempt to stop further excavation and construction on the site of a Native American burial grounds by defendant.
- The court affirmed the trial court, finding that the burial ground did not comply with the two methods of creating a public cemetery, either by dedication under Cal. Health & Safety Code §§7003, 8125, or by prescriptive use under Cal. Health & Saf. Code §§ 8100, 8126, which would have protected the site.
- The court answered in the negative the defined the issue of whether the burial ground achieved a protectable status as a public cemetery under the 1872 cemetery law by virtue of its prior status as a public graveyard.
- The court found that the tribe that had used the burial grounds was no longer using the burial ground in 1873, when the previous law was replaced, and therefore, the burial ground was not indelibly impressed with public cemetery status by operation of law at that time.
The court affirmed the dismissal by the trial court, finding that the burial ground was not protected from construction and excavation by defendant construction company because the land had not met public cemetery status by prescription or dedication or by virtue of its status when the laws changed in 1872.
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