A legend that Hessian and British prisoners of war are buried under a quiet stand of oak trees here has halted a developer's plans - at least until the riddle of the dowsing rod and the periwinkle can be cleared up.

The largest developer in Albemarle County, Charles Hurt, scoffs at claims that the site - where only a scattering of nondescript granite markers and a few depressions in the red clay earth remain - may hold the bones of British soldiers and German mercenaries captured at the Battle of Saratoga in 1777 and quartered in Virginia.

"These people believe in magic and the supernatural. It's comical. I like to laugh and poke fun at them. It's just local madness, ignorance I guess," said Hurt.

But Harry Garth, 67, and his brother Horace, 70, said the legend has been in their family for generations. They have lived their lives near the graveyard, on an ancestral farm that has been parceled away until the subdivisions it yielded have surrounded all that is left.

"They [the Garth ancestors] didn't cut the trees off of it. They didn't want to disturb it and we don't want it disturbed now," said Harry, leaning on a fence post.

Last week the 500-member Albemarle Historical Society persuaded a state judge to withhold approval of Hurt's plan to remove the graves to make room for a house on the three-acre lot.

Albermarle County Circuit Court Judge David F. Berry ruled on Wednesday that historians and an Archeologist could excavate five sites to determine once and for all if there are Red Coat and Hessian prisoners of war buried under the soil.

Removal of a grave without court permission is illegal in Virginia.

Archeologist David Hazzard recently accompanied a University of Virginia engineer to the cemetery and stood by as the man, blindfolded, paced across the periwinkle-covered site, with a divining rod. Everywhere the V-shaped divining rod dipped, Hazzard said, they found a grave.

In all the dowser indicated there were some 300 graves on the site, of which seven have been partially excavated. Inside were found the remains of coffins, bones, shoe leather, buttons and nails. But the latter dated from about 1815, too late to be of Hessian origin, said Hazzard, of the Virginia Research Center for Archeology.

The Albermarle Historical Society believes the excavated site is a later extension of the Hessian cemetery.

Developer Hurt puts little credence in the local lore of the Hessian cemetery, and still less in hte dowser's findings. The graves are not Hessian and lack sufficient historical significance to justify blocking his plans for the site, said Hurt in a phone interview. Hurt said he has a prospective buyer who wants to build on the land.

Local historians also point to the presence of periwinkle at the site as evidence that it is an old cemetery.They say the glossy vine-like growth was frequently planted as a cover for graveyards.

"Periwinkle grows anywhere you plant it. I have it in my yard," retorts Hurt.

Hurt advertised in area newspapers for descendants of those buried in the cemetery to come forward and "protect their interests" if they objected to the graves being moved, but on the Oct. 26 court date no descendants of Red Coats or Hessians appeared in court.

That, said local historians, was to be expected since as prisoners of war the soldiers did not have their families here and their descendants are probably in England and Germany.

Written records of the period were burned by British troops, but a road construction order from 1783, one of the few records to escape the flames, indicates the presence of the cemetery, according to Vernon Chamberlain, honorary president of the historical society.

Chamberlain shepherded a reporter to the Charlottesville clerk's office where a volume of Albermarle County history is kept in a safe. He pointed out a letter dated March 27, 1779, from Thomas Jefferson to Gov. Patrick Henry in which Jefferson described how Germans and British soldiers, housed in a barracks in the county, made do with little and eventually planted gardens, directed a theater and fraternized with the community.

The diary of an American officer also mentions the cemetery as large enough to hold 185 graves of those who died between january and August 1779, said Chamberlain.

The Garths said that tales they heard as children about the Hessians originated with Garland Garth, who built a house in 1818 near the site of the Hessian's barracks.

"These things were passed on to me by my ancestors," said Horate Garth. "I would have liked to have seen it remain a farm as it always was and as I remember it over the years. It's changing very quickly everywhere. I don't know if there's anything we can do about it."

He paused for a moment, "I don't think I passed the story on.Maybe it's a pity that I didn't. I don't know."