St. Mary Cemetery Lawsuit Goes to Trial

© 2015 The Texas Lawbook.

By Kerry Curry

(July 8 ) – Testimony began Wednesday in the long-simmering St. Mary Cemetery dispute in which plaintiffs allege a landowner desecrated a portion of the historic African-American cemetery in rural Ellis County in order to carve out more cropland.

The cemetery’s graves date to the late 1880s and include some of the county’s early inhabitants, including slaves owned by Edward H. Tarrant, the namesake of Tarrant County.

The 2014 lawsuit pits Irving-based Creek Land and Cattle and its owner, Blair Dance, against Italy historic preservationist and retired Dallas school teacher Elmerine Allen Bell and about 40 plaintiffs who are the descendants of people buried at the cemetery.

The cemetery, located on a rural road between the small towns of Italy and Avalon, is believed to be about 150 years old and situated on land that was once the Tarrant plantation.

A jury of eight men and four women, which includes one African-American juror, heard opening arguments and testimony from the lead plaintiff on two others on Wednesday in Ellis County’s 40th District Court in Waxahachie. Judge Bob Carroll is presiding.

“To us, St. Mary’s is a history book,” said Craig Albert, attorney for the plaintiffs, during opening statements. Albert is a partner is the Dallas law firm of Cherry Petersen Landry Albert LLP. “It helps us appreciate the past. To many of us, St. Mary’s is a peaceful place, a mournful place, a celebratory place.”

The dispute over the cemetery began in March 2012 when Bell’s brother and another man went to the cemetery to mow and noticed that trees had been removed and the land leveled. He notified his sister, Elmerine Allen Bell, who went to the cemetery and witnessed the damage.

Bell testified about a brief and acrimonious encounter at the cemetery about three days later in which she met landowner Blair Dance and asked him who gave him permission to remove things from the cemetery.

“He said he was the owner and that was his property,” she said. “He said I needed to shut up and listen. ‘Shut up and listen’ isn’t anything that I’m used to hearing,” Bell said. “I just turned my back. I said nothing else to Mr. Dance and he said nothing else to me,” she testified.

Defense: Case Blown Out Of Proportion

“Blair Dance didn’t desecrate any graves,” said attorney Adam Sanderson, representing the defendants, during opening arguments. “He improved the cemetery. The cemetery was thick with underbrush and had weeds that were knee to waist high,” he said.

He told jurors that the St. Mary Cemetery Association wasn’t even created until September 2014 — long after the lawsuit was filed.

Sanderson is a partner with Dallas-based law firm Reese Gordon Marketos. The defendants are also represented by Joel Reese of the same firm, Irving attorney Frank Boyles and Waxahachie attorney Clay Hinds.

Sanderson said Dance, an Irving accountant, bought 293 acres between Italy and Avalon in Ellis County in 2010 for farming. The deed conveying the property listed the cemetery and provided protections, including the right to public access.

In July 2012, about three months after the tree removal and leveling, Bell testified that she noticed the landowner had erected a chain-link fence that appeared to be encroaching onto cemetery property by about 10-12 feet. Land on the other side of the fence had been plowed, she said. Bell testified that she believes her grandfather and three other relatives are buried in unmarked graves beneath the corn crop.

During opening arguments, Sanderson said Dance erected the chain-link fence where the sheriff’s office told him to build it.

During her testimony, Bell, who said she has done extensive research on African-American cemetery customs, showed the jury relics recovered from the field west of the cemetery in January 2013 including an old, worn Coke bottle, a medicine bottle, a poem from 1947 and a Ponds cold crème jar. Bell said they found no tin, which normally would be found if the items were part of a rubbish pile.

Graves of poor African-Americans often were marked with household items, she said. They often lacked a formal gravestone because few could afford it. A grave of one of her relatives at the cemetery is marked with a homemade cement marker and another had been marked with a bed headboard, she said.

During cross-examination, Sanderson asked Bell why she had not visited the four graves in question that she believes lie outside the fence Dance built, and she said she didn’t because of the high foliage that had been there —where there once was a creek — and because that part of the cemetery often was muddy and had flooded in the past.

Sanderson asked several times about whether she had ever posted any signs at the cemetery about the location of graves. She said the property around the cemetery had not changed hands since 1939, and she didn’t see a need to post anything. He also asked if she had ever sought a historic designation of the cemetery and she had been working on that, but had never filed a notice, in part because she was unsure of the western boundaries.

Both sides attempted to settle the case more than once before it came to trial but could never come to terms.

“Whatever we get, if we get anything, will not replace what has been destroyed,” Bell said during cross-examination. “I don’t think there is an amount we would get that would satisfy everybody. This would had been settled years ago, had we been able to put the fence over 8 to 12 feet, it wouldn’t have gone to a lawsuit.”

In addition to Bell, the jury heard from a member of the Ellis County Historical Commission, Rex Carey, who testified that he had seen sheriff plumb lines for a fence that were several feet outside the boundaries of where Dance actually built his fence, and from Brian Chambers, a DISD teacher, who has several relatives buried at the cemetery.

Chambers said the cemetery looked vastly different after the trees and foliage were removed.

“You could go to the foliage and look into the foliage and see stones. All of that is gone,” he said.

“If Mr. Dance had just said, ‘Let’s make it right’ we wouldn’t be sitting here today,” Chambers said. “We weren’t looking for money. We wanted the cemetery to be put back to right as much as he could. It didn’t look like Laurel Land or Restland, but that cemetery had a lot of history in it.”

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