Protection and restoration of the John and Frankey Lea Jessee Cemetery, if not public access, was one of the main Jessee Historical Foundation goals when the JHF was created. The current JHF Board has decided to not pursue this project and asked that we not interfere with Mr. Herndon.
This cemetery is owned by Jimmy Herndon, who now lives on the property and has renovated the home there. We have learned that Mr. Herndon is not willing to cooperate with the Jessee family, has expressed various complaints, asks for privacy, and suggests that if we want access to the cemetery, we purchase his farm.
I believe we will need more investigation of our options and how to seek the cooperation of Mr. Herndon in at least providing demarcation and protection of this cemetery from further deterioration or damage from agricultural or other activities. I believe we need to work with Mr. Herndon to find a way to hold him harmless for any liability for those who may visit this cemetery with or without his permission.
In the meantime, I, and the JHF, ask that we not aggravate Mr. Herndon with unauthorized visits to his farm, home, and this cemetery.
We still need to get John Jessee recognized as a Revolutionary War Soldier and the cemetery where he and Frankey are buried acknowledged as a Revolutionary War grave site. We know that it is also a Civil War soldier grave site, and may need this recognition as well. New volunteers are needed to pick up this baton.
No matter how much Jimmy Herndon and some JHF Board members would like me and others to go away on this issue, a recent exchange on the Russell County List regarding the attempt by a land owner to destroy the Whitt Family Cemetery, brought out all kind of email to me about the Jessee Family cemetery situation. It is clear that recent Virginia law make it illegal for Jimmy Herndon to do harm to the cemetery and that he must provide reasonable access to the Jessee Family. I just wish that reason would prevail, and he would allow the Jessee Familiy contribute to the clean-up and fencing of the cemetery to prevent any future damage.
The following dialogue and Virginia State Law informatin directly pertains to the John and Frankey Lea Jessee Cemetery situation in Russell County as well, although we do not believe it to be in immediate danger from destruction. Never-the-less, some soul should alert the current owner of the Jessee Cemetery to this situation. It is my feeling the JHF can me more forward in finding an accomodation with Mr. Herndon based on the facts below.
Debra Rookard d_rookard@adelphia.net posted to VARUSSEL-L@rootsweb.com,
2/7/2005, in response to an alert about the threatened destruction of the Whitt
Family Cemetery
What you can do right now - Whitt Cemetery Destruction
A land owner must possess a court order to lawfully proceed in any disturbance
of a cemetery in the Commonwealth. If this unconscionable act is occurring as
we speak, there is no time for writing.
I encourage every person on the Tazewell and Russell List to pick up your phones
and start punching numbers. If you are local, please take a drive into town
this afternoon and personally speak with those in county administration.
I phoned the Historical Society and emailed some officers. The HS is not open
again until Wednesday. Their website is down. I just spoke with Bill Archer
from The Bluefield Daily Telegraph and he is looking into the matter. Time is
of the essence, Debra.
Tom Ruddertomr@infostations.com wrote, 2/7/2005, to alert me about
the above posting and provides this very important advice for Jimmy Herndon.
Jim: If this is in fact the law in VA then those people in Lebanon can take
theJessee Cemetery matter up with the local authorities who can make the land
owner aware of the law, in a nonbeligerent way, as a precautionary measure.
In other words the land owner should be madeaware of the law then the offical
notification will be on the record.
Bill and Linda Atwell bill.lin.atwell@mindspring.com Sent: Tuesday,
February 08, 2005 11:09 AM
To: VARUSSEL-L@rootsweb.com
Subject: VARUSSEL Confederate Soldier's Grave in Danger of Destruction
at Whitt Cemetery in Tazewell Cty., VA
Tracie Crawford furnished a listing of those buried in the Whitt Cemetery in
Tazewell Cty., VA. Among those buried there are an American Revolution Soldier
and a Confederate Soldier. It seems the owner, Mr. Finney, is in the process
of tearing down the old Whitt (Witt) house and plans on removing the fence
and grave markers from the cemetery, who knows what he plans on doing
with the graves themselves. He is also NOT accepting visitors to the cemetery.
American Revolution Soldier:
Being a member of the UDC in MD and born in Bluefield, I felt it wouldn't
hurt to contact the closest UDC Chapters and SCV Camps around the Cemetery
since there is a Confederate soldier's grave involved. They could be of
great help.
We also need help from the DAR and SAR in that area to protect the grave of
the Amer. Revol. soldier. Is there anyone on any of the mailing lists from a
SAR Chapter that's close by?
All of these organizations have great wisdom, strength and knowledge when
it comes to protecting the graves of their organization's soldiers. Everyone
needs to contact the people listed below furnished by Debra Rookard to voice
your concern over the possible destruction of the Whitt Cemetery. Make sure
you also continue contacting the local media.
Since Russell and Tazewell mailing lists are involved, I've taken the
liberty of adding the New River mailing list to my reply in case
someone there has a vested interest in helping save the Whitt Cemetery in Tazewell
Cty., VA.
Linda (Kelly) Atwell
Monrovia, MD
Carolyn SPENCETOP@aol.com
Sent: Tuesday, February 08, 2005 1:06 PM
To: VARUSSEL-L@rootsweb.com
Subject:Confederate Soldier's Grave in Danger of Destruction at Whitt ...
Frequently Asked Questions About Cemetery Preservation at: http://www.dhr.virginia.gov/homepage_general/faq_cem_%20presv.htm
Please see above for Virginia cemetery law! The landowner cannot just build
over the graves. If he wants to use the land, he must pay to have each grave
relocated!!!!
Linda Craig LMCraig@insightbb.com
Sent: Tuesday, February 08, 2005 4:33 PM
To: VARUSSEL-L@rootsweb.com
Subject: [VARUSSEL] Cemetery about to be destroyed
First of all there is a State Law in the State of Virginia along with most states
today. This man simply because he bought the property can't do as he wishes.
If someone has a few pictures of the Cemetery and with all the information that
you have about just a few of who are buried there he can be stopped. I have
family in Russell County and have helped to stop the same thing here in the
State of Indiana where I now live.
Tom Rudder tomr@infostations.com
Sent: Tuesday, February 08, 2005 5:38 PM
Jim: This and the following [Virginia Law] should take care of the problem with
Herndon. Tom
The original text was posted by Debra Rookard, and a copy was also sent to me and and Kathryn Greever from Thomas-Jack Hockett, who followed the matter and clearly share the concern.
From the Code of Virginia:
§ 57-27.1. Access to cemeteries located on private property; cause of action
for injunctive relief; applicability.
A. Owners of private property on which a cemetery or graves are located shall
have a duty to allow ingress and egress to the cemetery or graves by
(i) family members and descendants of deceased persons buried there;
(ii) any cemetery plot owner; and
(iii) any person engaging in genealogy research, who has given reasonable notice
to the owner of record or to the occupant of the property or both. The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property. Thelandowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.
B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research. The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for the purpose of accessing a cemetery or gravesite unless there is a road or adequateright-of-way that permits access by a motor vehicle and the owner has given written permission to use the road or right-of-way of necessity.
C. Any person entering onto private property to access a gravesite or cemetery shall be responsible for conducting himself in a manner that does not damage the private lands, the cemetery or gravesites and shall be liable to the owner of the property for any damage caused as a result of his access.
D. Any person denied reasonable access under the provisions of this section may bring an action in the circuit court where the property is located to enjoin the owner of the property from denying the person reasonable ingress and egress to the cemetery or gravesite. In granting such relief, the court may set the frequency of access, hours and duration of the access.
E. The provisions of this section shall not apply to any deed or other written instrument that creates or reserves a cemetery or gravesite on private property. (1993, c. 713; 2004, c. 831.)
From the Code of Virginia:
§ 18.2-127. Injuries to churches, church property, cemeteries, burial grounds,
etc.; penalty.
A. Any person who willfully or maliciously commits any of the following acts is guilty of a Class 1 misdemeanor:
B. Any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any object or structure permanently attached or affixed within any church or on church property, any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery is guilty of a Class 6 felony. A person convicted under this section who is required to pay restitution by the court shall be required to pay restitution to the church, if the property damaged is property of the church, or to the owner of a cemetery, if the property damaged is located within such cemetery regardless of whether the property damaged is owned by the cemetery or by another person.
C. This section shall not apply to any work which is done by the authorities of a church or congregation in the maintenance or improvement of any church property or any burial ground or cemetery belonging to it and under its management or control and which does not injure or result in the removal of a tomb, monument, gravestone, grave marker or vault. For purposes of this section, church shall mean any place of worship, and church property shall mean any educational building or community center owned or rented by a church.
(Code 1950, § 18.1-244; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 561; 1983, c. 579; 1990, c. 510; 2004, c. 203.)
Debra Rookard d_rookard@adelphia.net
Sent: Thursday, February 10, 2005 5:49 PM
To: VARUSSEL-L@rootsweb.com
Subject: Whitt-Lowe Cemetery Update 2/10/2005
All of you are to be highly commended for your valiant efforts to step up and
do what was within your power to further prevent the destruction/desecration
of this cemetery. It has taken center stage in our lives this week, and I am cognizant of the difficulty, sacrifice, and hardship many of you faced; being such a sudden call to arms. I want to thank each and every person who has called, emailed, and took time out of their day/s to show up on the steps of the Tazewell County courthouse. Your efforts were not in vain.
The current landowners have willingly spoken with a few of you brave souls who called and visited. Only time and the materialization of peaceful ingress to our sacred family burial ground will prove their sincerity and acquiescence to the law of the Commonwealth of Virginia. While the crisis is by no means over, there is still more heartening news that has come by way of the deed to the Lowe property; and I quote: Tazewell County Deed Book 332, Page 472
THIS DEED made this 6th day of October, 1966
WITNESSETH:
THAT for Twenty Five Thousand Dollars ($25,000.00), cash in hand paid by the party of the second part, the receipt of which is hereby acknowledged, the parties of the first part do hereby grant, sell and convey, WITH COVENANTS OF GENERAL WARRANTY OF TITLE, but subject to the exceptions and/or reservations hereinafter set forth, unto the said Walter F. FINNEY... [father of the current owner] sic
Tazewell County Deed Book 332, Page 473
EXCEPTING AND RESERVING, HOWEVER, unto the said W. Grant LOWE, David C. LOWE Jr., Alice L. BREWSTER and Ruth L. JOHNSTON, and their descendants, the LOWE Cemetery, located on the above described lands as the same is now enclosed by fence, and which is approximately 150 x 200 ft. in size, as a burialplace for them, their descendants, relatives and any others who may beentitled to be buried therein, together with all necessary and convenient rights of ingress and egress from the public road to said cemetery and theright to repair, maintain and/or replace said fence.
WITNESS to following signatures and seals:
This painful exercise proves what a good legal document can provide for your
family, (and descendants), many decades hence. I wish to encourage everyone
to review the exact wording of your deeds and Wills. Hopefully, you have also
made provision or attached codicils for the preservation and/or distribution
of your genealogical efforts.
Now we wait,
Debra Rookard
Forsyth Co, GA
5th great granddaughter of Hezekiah Whitt
Revolutionary soldier buried Whitt - Lowe Cemetery
I hear their whispers; etherial, soft, and still.
Daughter, if you don't remember us, who will?
Debra Rookard [d_rookard@adelphia.net] wrote, 11/4/2003, in response to the above information with this very generous offer of help and additional information about this matter.
I read on our Jessee List about not being allowed into the cemetery by Mr. Herndon. I am an historic cemetery restoration/preservation specialist and am writing to offer free consultancy help. VA cemetery law does not allow remedy for access if the land owner objects, but .... there are legal ways to coerce the subject into compliance.
Please write and tell me what you know about Mr. Herndon and the communication you have had with him to date. It would be an honor being allowed to help in this matter.
I am also a Herndon descendant; (from Rachel Harrington Herndon's g'father David). This makes me related to every Herndon in Russell and Washington County. I will be most pleased to help with whatever you and the Jessee family might need.
Via the Jessee List on Internet I shared the above message and asked the JHF Board or representative to respond to Debra Rookard and to include her in future discussions. I think doing nothing may lead to further deterioration of the cemetery and that we need to map, demarcate or get a fence around that cemetery as soon as possible, to prevent further damage from agricultural or other activities. I have seen that just having cattle graze over the cemetery has knocked down the last of the standing stones. This is also in Mr. Herndon's best interests.
In response to the above appeal, Joe Jessee reported the following information, and his own and the current JHF board stance on this matter.
Joe Jesseejoejessee@yahoo.com wrote, 11/6/2003, with the following. I have edited this slightly from the original and words in [brackets] have been added by the editor to maintain meaning.
Please feel free to make the contacts you mentioned [Ms. Rookard, and seeking other information] ... and send a written report with suggestions to me and others for discussion at the next Jessee Historical Foundation (JHF) meeting in March 2004.
Two years ago I made an appointment with Mr. Herndon, the landowner of the
John Jessee cemetery, and met with him on May 12, 2001, to discuss possible
restoration and or access by JHF. This appointment was made at the resolution
of the JHF Board of Directors.
Mr. Herndon expressed several reservations regarding entry onto his property
and stated that he did not wish to allow entry at that time. These reservations
were based upon
I reported this to the Board of Directors and others and the decision was made at that time to not approach or be a nuisance to Mr. Herndon. Particularly, to see things from his point of view, like it was your property", and respect the property and privacy of the landowner.
However, this did not occur. Subsequently, in the summers of 2002 and 2003, two different groups of people, including JHF Directors, acting unknown to the JHF Board, [I believe there were more- Ed.]went to Mr. Herndon's property, unannounced and unexpected by Mr. Herndon, and ask to have immediate access to the cemetery. … [At some point one group of visitors] were told that they could purchase the farm."
… continued attempts to gain access to the cemetery will or would only continue to make any person more resistant to allow access upon their property. Mr. Herndon is a decent man who will not destroy the cemetery; and he told me that he would restore the cemetery at a time of his convenience.
The JHF was created to make a concerted attempt on restoring the cemetery as
opposed to uncoordinated individual attempts. Further actions which might serve
to bother Mr. Herndon are extremely counterproductive. And some of us have to
live here!
Mr. Herndon during my visit with him was polite but unyielding to any current
entry or restoration or fencing of the cemetery due to the past problems listed
above.
Leave Mr. Herndon alone until maybe 2008 and then he can be approached with
a concrete plan for the cemetery which contains provisions to protect the landowner.
Respectfully Submitted,
Joseph Jessee
President, Jessee Historical Foundation, Inc.
I may have upset some with my postings on this to the Jessee List, and if I aggravate more with this article, I am sorry. Two members of the JHF board, who asked to remain anonymous, wrote me a note to say that Joe had misinterpreted at least some of the contacts with Mr. Herndon, and that their contact with him was very cordial. They also strongly agree with Joe's conclusions. They chastised me for making this matter public on the Jessee List. They insist, along with Joe, that the JHF has tabled this matter for now. They both asserted that Mr. Herndon is an honorable man and will not harm the cemetery. They ask that we have respect for Mr. Herndon's property rights and to leave him alone.
Family and friends, I am a Jessee, and, like many others who share my love for family, afraid I am stubborn and persistent, and dogged about matters of family history and heritage. I do not believe that anyone made promises to Mr. Herndon that were not kept, nor were there any things said or done by family members that I know that warrant his umbrage. I, among others, have visited that cemetery at times over 25 years, and have watched it deteriorate. In summer 2002, his gate was open and I drove up his driveway to meet Mr. Herndon. I told him of the family interest in the cemetery, and that Joe Jessee represented the JHF on this matter. I made no demands, not even for immediate access to the cemetery for me or the family who were with me that day and wanted to see it. I am very disappointed that the JHF board may not take a helpful role in the future, but still urge them to, and even more worried that a debate over property rights could split us up into political camps. Let's not.
Just a little understanding about people's feelings for the sacred burial place and home of their ancestors, and simple human decency, if not plain old fashioned Russell Co. neighborliness, could resolve all this to the satisfaction of everyone.
Please, Mr. Herndon, consider that this is the original pioneering farm in 1790 in Russell Co. where John and Frankey Lea Jessee raised their fifteen children. This is the first known Jessee cemetery for most of the Jessees in America, and the ancestors of many other Russell Co. families. It is the resting place of an American Revolutionary War patriot, and that of his grandson, Thomas Jefferson Jessee, a C.S.A. Civil War veteran. They have thousands of descendants living today, and hundreds of them know of this land and cemetery through their own family lore, Russell County history, this newsletter and Website, and much more public information. Interest in the cemetery and the desire of hundreds to visit it or know that it is at least safe for the future is a tide that cannot be turned. I cannot put this Jessee back into the bottle.
I strongly believe we need to respect Mr. Herndon's property rights, his privacy and wish to be undisturbed at his home, and absolutely must hold him harmless for trespassers and even invited guests who may wish to visit this cemetery. I advocate cooperating with Mr. Herndon to ask visitors to not trespass or intrude on his farm or home, providing he works with us to map and protect the cemetery, and to post appropriate signs as described below.
After we know what the above may cost, I ask that the JHF again approach Mr. Herndon to share the information, and offer to pay him or provide mutually agreed upon volunteers, or contractors if necessary, to do what is desired. Mr. Herndon expressed a willingness to do these things himself. If he does so, I believe we should compensate him for the cost of materials, and additional labor he may require.
I would be satisfied with the accomplishment of above that Mr. Herndon is sincere in not harming and making an effort to preserve the cemetery as is. If so, I would agree to do nothing further, not seek redress of any damage done, nor ask for cemetery restoration at this time. Should Mr. Herndon actively lead the effort to restore the cemetery, he would be a family hero. If we can reach that accord, I would ask one more consideration from Mr. Herndon that could also help end trespassing or other intrusion into Mr. Herndon's life in the future.
I ask that the JHF seek permission from Mr. Herndon and, if agreed, plan and fund the placement of a historical sign or landmark on Mr. Herndon's property, as appropriate along County Road 645 where someone might safely be able to pull over or off the road to read it. Wording can be developed later, but should indicate that this land is the ancestral home of John and Frankey Lea Jessee and their fifteen children, the burial place for an American Revolution patriot and C.S.A. Civil War veteran, along with historical information. It should indicate that the original Jessee cemetery on the hill (in the appropriate direction needed) behind this sign, has been protected by the landowner, but there are no stones or other evidence visible above ground, and there are no original buildings left on this farm.
I would ask that the following wording or something like it be included
boldly on the sign.
The Jessee Historical Foundation asks visitors to respect the property rights,
farming activities, and privacy of the homeowner. Please do not trespass on
this private land nor go to the home here to request permission for access to
the cemetery.
I want to try this friendly persuasion, rather than just post notices. I believe we need to find legal means holding the land owner harmless for liability for anyone visiting his farm or the cemetery, invited or not. Perhaps this is a matter of Virginia state law, and if so, there must be many land owners in the same boat. Could an easement be purchased from Mr. Herndon, should he ever be willing, to allow some formal means of access to the cemetery? If such can ever come to be, perhaps the JHF can consider actual restoration of the cemetery, someday. For now, I can be content to let John and Frankey sleep undisturbed, if I know this ground is protected.
We need leadership in the area to explore local resources for taking the actions above and to work with Mr. Herndon. This is an Eagle Scout project, if I have ever seen one, but needs lots of help and cooperation to happen. I ask that those best able, who are family, friends, neighbors, or just a knowledgeable person to please help. You may share my newsletter and views with Mr. Herndon, and my apologies for the necessary intrusion. There is a way for all to be satisfied here. Please help us find the way.
Mike and Joy Malone sent previously, 2/18/01, related information to the discussion above about an opportunity to properly recognize and record the grave site of our John Jessee Revolutionary War soldier. Specific information on this was provided in the July 2002 newsletter which is available on line at www.jessee.org. We still need to get John Jessee recognized as a Revolutionary War Soldier and the cemetery where he and Frankey are buried acknowledged as a Revolutionary War grave site. We know that it is also a Civil War soldier grave site, and may need this recognition as well. New volunteers are needed to pick up this baton.
To the 7th annual National Jessee Family Reunion
Saturday, June 17, 2006
10am to 4pm at the Harry L. Coomes Recreation Center and Park Grounds,
Abingdon,VA.
Meet Jessee family from all over the country, enjoy family arts, crafts,
and entertainment. Please join us.
