MAN SUES TO BURY HIS MOTHER.

Byline: Charles F. Bostwick Staff Writer

PALMDALE - A man seeking to bury his mother in the old Palmdale Cemetery filed a lawsuit Thursday against the cemetery's titled owner and two women who are trying to get it designated a historical landmark.

Ben Marquez's lawsuit is a precursor to seeking a court order declaring the tiny graveyard a public cemetery and authorizing Alice Randolph's burial there, Marquez's attorney said.

``My theory is, if it's a public cemetery, my client's mother is a member of the public that is eligible to be interred there,'' attorney Sue Ann Howard said. ``It's for a judge to decide.''

The Lancaster Superior Court lawsuit seeks unspecified damages for intentional and negligent infliction of emotional distress from Donald Jones, Trish Conley and Beverly Brusven, who called sheriff's deputies Tuesday to stop a backhoe operator from digging a grave for Randolph.

No date has been set for a hearing. Howard said she expects to file a motion next week asking for a court order authorizing the burial.

Randolph remains buried in Lancaster Cemetery, where she was interred after her death at age 59 in August 1999 after her son couldn't get permission to bury her in Palmdale between the graves of her husband and brother.

Marquez said he was told he needed to get a sonar survey done of the plot to make sure nobody else was buried there. Brusven and Conley say no one has been keeping track of where burials took place and no map exists that shows the location of graves, meaning that any new burial risks digging up old remains.

``It has nothing to do with whether it's private of public,'' said Conley. ``The cemetery plots are not marked. That's the bottom line.''

A 1926 map shows a grave in the area where Marquez wants to bury his mother, Conley said, and the family has no proof that they own the plot. If their wishes are granted, she said, it essentially means anybody could legally dig a grave anyplace in the cemetery, without seeking permission from anyone.

As far as getting the cemetery declared a public one, Conley said she and Brusven have been trying to get the city to take it over for four years but with no success.

``We are trying to protect the people who are already there,'' she said.

The lawsuit is the latest occurrence in the murky ownership history of the cemetery, which was founded in 1885 by Palmdale's earliest settlers and for years has been tended by volunteers and targeted by vandals.

Los Angeles County took over the 2.5-acre cemetery in 1951 for unpaid taxes, but decided years later it had done so illegally because state law exempts nonprofit cemeteries from taxation.

In a 1998 investigation prompted by Brusven and Conley's attempts to get the cemetery declared a historical site, county officials decided that Jones, a Tehachapi resident, was the rightful owner.

Jones inherited the cemetery from his father, who had inherited it from a woman who had acquired it in 1905, the county investigation concluded. That woman, Anna Jones Smith, was one of the original members of the Zion Lutheran Church, which established the cemetery, Conley said.

Howard bases Marquez's lawsuit on a 1939 state law that says that if land is used by a city's inhabitants without interruption as a cemetery for five years, the property may not be used except as a public cemetery and title becomes vested ``in the inhabitants of the city.''

Palmdale city officials last summer turned down Jones' offer to donate the land to the city. State law says a public cemetery not owned by a city or fraternal association comes under the jurisdiction of the county board of supervisors.

The lawsuit said Marquez's grandfather acquired a parel of land in the cemetery in August 1964, when Marquez's uncle died at age 6. The uncle was buried in the plot, and so was Marquez's stepfather, who died in 1994, the lawsuit said.

Marquez's mother had asked to be buried next to her husband when she died, the lawsuit said.