THE ENCROACHING GRAVE
Two Jewish families in El Paso have bought a group of graves adjoining each other’s in the Jewish cemetery. A member of one of the families died and was buried on the lot partially or completely belonging to the other family. The family whose lot was thus encroached upon has asked that the body of the deceased be disinterred from their lot. The law of the State of Texas does not permit disinterment unless by permission of the surviving spouse. The question before us, therefore, is this: Should the surviving spouse give permission for this disinterment considering his (or her) own wishes and also the attitude of Jewish law on the matter? (Asked by Rabbi Kenneth J. Weiss, El Paso, Texas.)
In general, of course, Jewish law has strong objections to disinterment. It is considered that the body of the dead, wherever it is buried, acquires possession of the grave. For example, even if by chance a body is buried in someone else’s cornfield, he cannot be disinterred unless a portion of the earth is moved with the body, for he has acquired the land in which he was buried, even though it was not his own land. So in general we must say that the body, having been buried, even by mistake in the wrong land, has acquired the ownership of the grave. Therefore, if his family insists upon it, he has the right to remain buried there even if it is in someone else’s property.
This is the general rule involved; but to this general rule, there are many clear exceptions (Shulhan Arukh, Yoreh Deah 363 and fully discussed in Greenwald’s Kol Bo, pp. 223 ff). These exceptions make it clear that although the body has a right to remain where it was buried, there are certain motivations by reason of which the body may be disinterred. Among these motivations which permit disinterment is the preference for a person to be buried in his own property (betokh shelo). Also, there is permission to disinter for burial with one’s kin in a family plot (qever mishpahah).
These two permissions have direct bearing upon the question we are discussing. This body was buried partly in someone else’s property instead of his own property which was nearby. The very fact that the family of the deceased had bought a group of graves, indicates clearly their wish and intention to be buried, as the tradition prefers, in their own property. We may, therefore, assume that the present burial was in a place contrary to the wishes of the deceased. Clearly he would have preferred to have been buried in his own property, as evidenced by the fact that he and his family bought cemetery space for that very purpose.
There is an additional consideration, namely, the question of encroachment. The burial of the body upon the land belonging to another family prevents this second family from carrying out its traditional intention of having burial in its own property or the family plot. This encroachment, being of course unjust, may lead to bitterness between the two families and a state of lasting enmity may ensue. This might well bring about another violation of Jewish tradition, namely, that people who are enemies of each other may not be buried side by side (Shulhan Arukh Yoreh Deah 362:6); and in these two adjoining lots, such a burial might very well take place.
The situation, then, is this: If the family of the deceased refuses to have the body disinterred, then Jewish law in general agrees with the Texas law. The body has the right to remain where it is. But if the family, in accordance with the manifest wishes of the deceased, want him (or her) buried in his (or her) own property, then such a disinterment is fully in accordance with Jewish tradition, which permits disinterment for reburial in one’s own property and burial with one’s family. The disinterment will also remove the possibility that hostility between the families might result in burial of enemies side by side, which is contrary to the spirit of the Jewish legal tradition.