REASON FOR REVIEW
A citizen's complaint was filed with the 1998-1999 Amador County
Grand Jury by three County residents who claimed they were denied
access to the Drytown Cemetery. The complaint was filed too late
in the jury's term of office, so it was referred to the
1999-2000 Grand Jury for investigation.
The Drytown Cemetery, one of Amador County's oldest pioneer
cemeteries, was established during the gold rush era and contains
the remains of many of Amador County's earliest residents. The
cemetery is a 1.54 acre parcel of land owned by the County of
Amador, and is completely surrounded by privately owned property.
There is no publicly owned right of way giving access to the
Sometime in the early 1990's, the owner of the surrounding
property began locking the gate at State Route 49 on the only
road leading to the cemetery. Over the next few years, the County
Board of Supervisors and the property owner conducted a series of
negotiations to try to find a way to guarantee unrestricted public
access to the cemetery. The negotiations proved unsuccessful, so
in 1996, the County filed a lawsuit in Superior Court asserting
that long-term use of the property owner's road by the
public implied dedication of a public right-of-way.
During the trial, three residents of Amador County, who had been
instrumental in bringing this matter to the attention of the
County Board of Supervisors, were subpoenaed to testify on the
County's behalf. After hearing the testimony, the Court ruled
against the County and declared that the property owner's title
"shall be quieted against a claim of a public right-of-way".
Subsequently, the property owner denied access to the cemetery,
over his property, to the three individuals who testified at the
trial. Because there is no other accessible route to the cemetery,
the property owner's denial of access has made it impossible for
them to visit their ancestor's graves. While denying entry by
those three individuals, the property owner has stated that any
other person may use his road, providing they first obtain his
Two of the three complainants
- The owner of the property surrounding the cemetery
- The Board of Supervisor's County Cemeteries ad hoc
- The County Counsel
- Chairman of the Amador County Cemetery Board
- Member of the El Dorado County Pioneer Cemeteries
Two site visits were made to the cemetery to examine the
feasibility of alternative access routes to the cemetery.
Original recorded map of Drytown, dated 1871.
- Amador County Assessors Map 8-16.
- Caltrans archeological map of the cemetery.
- Superior Court ruling dated July 16, 1996.
- Legislative Counsel of California opinion, dated March
- Numerous other documents, such as transcripts of
depositions, letters, newspaper articles and other written
accounts of the dispute were obtained and examined.
The Drytown Cemetery property is owned by Amador County.
- The land surrounding the cemetery is in private
- The 1871 recorded "Map of Drytown" shows the only access
to the cemetery as a public right-of-way named "Cemetery Street",
connecting "Main Street" (now State Route 49) with the cemetery.
- The current County Assessor's Map 8-16 shows Cemetery
Street in the same location as indicated on the 1871 Drytown
- The Cemetery Street alignment traverses an existing farm
pond and its topographic features render it unfit for developing
vehicle access to the cemetery.
- The Cemetery Street right-of-way has never been
improved, nor has any attempt been made to provide access to the
cemetery via that right-of-way.
- An opinion of the Legislative Counsel of California,
dated March 9, 1999, concluded that Amador County is not legally
required to provide access by members of the public to the
- A gravel road, having two gates capable of being locked,
connects State Route 49 to the cemetery. The road is located on
the privately owned land surrounding the cemetery.
- A July 16, 1996 Superior Court ruling stated that the
existing roadway cannot be considered to be a public right-of-way
by implied in-law dedication.
- Three specific individuals are denied access to the
cemetery by the owner of the surrounding property. With the
property owner's permission, other members of the public are
- The Drytown Cemetery is classed as a pioneer cemetery;
it contains the remains of many of Amador County's pioneer
- The owner of the property surrounding the cemetery has
stated he will permit an access road to be constructed as an
extension of China Street.
By showing a public right-of-way (Cemetary Street) on the
Drytown Township Map in 1871, Amador County officials clearly
intended there to be a public access to the cemetery.
- The Amador County Board of Supervisors has, for several
years, attempted to resolve the access problem by means of both
negotiation and litigation.
- The County is not legally obligated, under California
Statutes, to provide public access to the Drytown Cemetery.
- Because it has never been improved as an access roadway,
Cemetery Street can no longer be considered as a publicly owned
right-of-way. In any event, it would be technically and
economically infeasible to construct a roadway on that
- Construction of an access road from China Street would
require a major structure to cross Dry Creek as well as extensive
road improvements. Although the Grand Jury has not estimated the
cost of such access, it would most likely be prohibitively
- Although the owner of the surrounding property is
legally within his rights to deny access to the cemetery through
his property, we believe the exclusion of three specifically
named individuals is discriminatory because all other persons are
- Significant costs would be incurred to provide public
access by any route, and it is recognized that the Board of
Supervisors must weigh those costs against the many other fiscal
needs of the County. However, we believe the Board of
Supervisors, as representatives of all the County's citizens, has
an implied obligation to ensure that all citizens are treated
equally with respect to access to publicly owned facilities.
As indicated above, the Amador County Grand Jury has concluded
that the County should ensure that all persons have unrestricted
access to the Drytown Cemetery. Furthermore, the solution should
be a permanent one. We do not believe a simple agreement with
the present property owner is sufficient, because the same
problem could reoccur should the property be sold or transferred
to another person. Based on that conclusion, the Grand Jury
recommends the following actions:
The Board of Supervisors should publicly state their commitment
to preserve the rights of everyone to unrestricted access to the
- The Board of Supervisors should enter into meaningful
negotiations with the property owner in an attempt to establish a
legal public easement along the alignment of the existing access
- Should such a negotiation fail, the County should
initiate engineering studies of alternative access routes to
determine if any are financially feasible.
- Should the construction of an alternative route to the
existing roadway be shown to be financially infeasible, the Board
of Supervisors should institute an eminent domain proceeding to
secure permanent, legally binding, unrestricted public access
over the route of the existing roadway.