Summary of a Recent
Judicial
Development in
Landowner Liability
Relatives of Persons Buried in a Cemetery Have an Easement
to Enter and Care for the Graves
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Bogner v. Villiger, 796 N.E.2d 679 (Ill. App. Ct. 2003), the Illinois Court of Appeals affirmed the trial court's order imposing a permanent injunction preventing landowners from operating an irrigation system on an area of their property where a cemetery was located, to prevent irreparable harm to the graves and tombstones therein.
Background
Plaintiffs who had family buried in a cemetery located on the Villigers' property obtained a permanent injunction preventing the Villigers' from operating an irrigation system on the property, and the Villigers appealed. Id. at 682-83.
Arguments
The Villigers asserted affirmative defenses of laches and claimed they had a prescriptive easement which allowed them to operate their irrigation system. Id. at 682. They also argued that the plaintiffs had not shown they had a clear and ascertainable right in need of protection or that irreparable harm would result from allowing the irrigation system to operate. Id.
Analysis and Holdings
Illinois case law gives relatives of those buried in cemeteries an easement to enter into the cemetery and care for the graves. Id. at 683. The court rejected the Villigers' laches defense because the record indicated that the plaintiffs had not neglected to assert their rights for a significant period of time, and that the Villigers had suffered no prejudice. Id. at 684. The court explained that to establish an easement by prescription, a party must prove that the use of the land was adverse, exclusive, continuous and under a claim or title inconsistent with that of the true owner for a period of 20 years. Id. at 684-85. The court found that the Villigers had failed to satisfy those requirements, particularly the 20-year continuous use period. Id. at 685. The court agreed with the trial court that "no practical alternative or remedy at law was available to protect the integrity and sacred value of the cemetery" other than to impose a permanent injunction, and therefore affirmed the trial court's ruling. Id. at 686.
The case was decided on August 29, 2003.