millville-nibley cemetery

The Millville-Nibley Cemetery as seen on Monday morning.

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In the midst of a three-year-old lawsuit and even longer history of dispute between Millville City and the Millville-Nibley Cemetery District, Millville City Mayor David Hair has asked the Cache County Council to appoint all new members to the district.

“It seems that the present board that we have had, we’ve had issues with in the way of lawsuits,” Hair said in an April 26 County Council meeting. “We’re the type of community that likes to work with people, and we just feel as a council it might be time to move on with a new board.”

The lawsuit Hair referenced was filed in 2019, though the roots of the disagreement reach back to the beginning of the cemetery in 1886, when it was composed of six acres donated to The Church of Jesus Christ of Latter-day Saints by Able Garr after his wife’s death. According to Erin Byington, the lawyer currently representing the cemetery district, the church took on the role of maintaining cemeteries at the time. Sometime in the 16 years following Garr’s donation, Johannes Anderson turned a piece of his land into a roadway and entrance into the cemetery, giving the property to the church in what Byington described as “a handshake deal.”

Years later, in 1932, the cemetery was given to Millville by the church, and in 1945 the Millville-Nibley Cemetery Board was created to maintain and manage the property, though the deed remained with Millville City.

“This is where the problems really started,” Byington said. “And the reason why is because the city — despite having nothing to do with the cemetery as far as maintenance and control — the city held the title to the land technically.”

In 1983, the same year the cemetery expanded to include what is now known as the center parcel, the mayor of Millville and the director of the cemetery district publicly dedicated the street given by Anderson. According to Byington, they did not have legal authority to do so as Anderson had never officially deeded the land to the church, Millville, or the cemetery district.

Byington said though the property around the lane was developed by Anderson’s descendants, every deed in the area specifically excludes the road.

“What it shows is obviously that everybody understood that lane was for the cemetery for its entrance and access,” Byington explained.

In 2002, Millville bought land from the church west of the cemetery. Byington said the deed clearly excluded the road. When Millville extended 200 East in 2017, however, the city removed two stone pillars that stood at the entrance of the cemetery.

The two structures had been erected sometime between the late 1800s and the 1930s. Jim Jenson, the current chairman of the cemetery district, believes the removal of the pillars shows the city’s lack of respect.

“We’re only trying to protect the assets of the taxpayers of Millville and Nibley,” Jenson said. “I just feel like Millville city should respect what that cemetery stands for.”

Byington explained the personal aspect of the situation for members of the cemetery district.

“Everybody on the board of the cemetery district is generally a relative of the original members on the cemetery board,” Byington said. “There’s a lot of family in that cemetery of the members of the cemetery board. So you’re talking about a group of guys that really, really care about the cemetery.”

Though the removal of the pillars eventually became a point of disagreement, Daniel Grange, a member of the Millville City Council, said the cemetery district was informed and onboard when the pillars were removed. Jenson and Randy Feser, another member of the district, argue the district did not consent to the removal of the historic items. Byington said district members did approve of the objects’ removal, but did not speak for the board in doing so.

“There were two board members, one of them employed by the city at the time, that essentially kind of undermined the cemetery district,” Byington said. “That was not a board position, and the person that said it was not even close to authorized to speak for the board.”

Tensions rose further when, in 2017, the cemetery district bought the western parcel of land from Millville City, and Millville charged them $15,000 for the road that, according to Byington, was still owned by Anderson’s descendants.

In 2019, after civil negotiations and discussions between the cemetery district and Millville failed to produce desired results, the cemetery district pursued litigation. They filed a lawsuit against Millville City in 1st District Court, citing eight legal claims.

Because they waited for more than a year after the situation to file the lawsuit, however, six of the claims were dismissed under the Utah Governmental Immunity Act, which dictates a claim against a governmental entity must be filed within a year of the claimed action taking place. Byington believes this to be a tragedy, and thinks Millville stretched conversation over a year to ensure claims would be dismissed with UGIA’s statute of limitations.

“I’m not sure UGIA was intended to allow a city to steal land from another political subdivision,” Byington said. “I would think it’s unconstitutional, particularly when you’re talking the takings of land.”

Byington believes if it weren’t for UGIA’s time allotment, the lawsuit would be going much better for the cemetery district.

“I’d be mopping the ever-loving floor with them because I have the title history on my side,” Byington said.

The cemetery district has offered to dismiss the lawsuit without prejudice, but Seth Tait, the lawyer representing Millville City, doesn’t want the issue to resurface further down the line — dismissal without prejudice would allow the cemetery district to file the lawsuit again. Tait also believes the districts’ claims could have been dismissed even without the UGIA statute of limitations.

“I think she’s correct in that the basis for the court dismissing some of the claims was that the cemetery failed to follow the procedure and meet the deadlines under the governmental immunity statute,” Tait said. “But that does not mean that that was the only basis that the city could have dismissed them on. … I think in the cemetery’s mind, they felt that they had viable claims. The city does not agree with that. They don’t think there are any viable claims in this case.”

Tait also said 1980s dedication deeds and a lack of title record would logistically mean Millville owned the disputed lane into the cemetery.

“So there were some deeds that were recorded that were what we refer to as dedication deeds, where they show that this is a public right of way, and it appears as though because the city had used that, had owned the cemetery for decades up prior to the district, you know, receiving title in 1980s, that the city also owned the road, which would make sense,” Tait said. “In other words, if Millville City owned the cemetery from 1950 to 1980, and we have no title record, then the city feels that it was implied in the deeds that it would also own the road to get to the cemetery.”

Hair said the current district maintaining the district has done a good job, and specified his call for new district members to be about resolving the longstanding conflict.

“I think they’ve done a good job,” Hair said. “It’s just because of the blood that’s just been boiling for too long on that side and being able to resolve it has been difficult.”

The County Council is slated to address the cemetery board on Tuesday.

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