Rosehill Cemetery Co. v. City of Chicago

• Decision Date: 05 April 1933
• Docket Number: No. 21393.,21393.
• Parties: ROSEHILL CEMETERY CO. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

352 Ill. 11

185 N.E. 170

ROSEHILL CEMETERY CO.

v.CITY OF CHICAGO et al.

No. 21393.

Supreme Court of Illinois.

Feb. 23, 1933.

Rehearing Denied April 5, 1933.

Suit by the Rosehill Cemetery Company against the City of Chicago and others, in which the North Town Improvement Association and others filed intervening petitions. From a decree granting the prayer of the bill and dismissing the intervening petition, defendants and interveners appeal.

Affirmed.Appeal from Superior Court, Cook County; Robert E. Gentzel, Judge.

William H. Sexton, Corp. Counsel, and Tarnopol & Flamm, all of Chicago (Carl J. Appell and Irving H. Flamm, both of Chicago, of counsel), for appellants.

Ashcraft & Ashcraft, of Chicago (Carroll J. Lord, of Chicago, of counsel), for appellee.

DUNCAN, Justice.

Appellee, the Rosehill Cemetery Company, on April 24, 1931, filed a bill in the superior court of Cook county for an injunction against appellants the city of Chicago and its officers, agents and attorneys, to restrain them from interfering with appellee and its employees and agents in improving and using a 25-acre tract of land in that city for cemetery purposes. A demurrer to the bill was overruled. Appellants the North Town Improvement Association, Henrietta P. Cross, Herman H. Braun, and Peter C. Nedli applied for and were given leave to file, and did file, an interveningpetition. The prayer of the intervening petition was that appellee be enjoined and restrained from using the 25-acre tract as a burial place and be ordered to remove any bodies there buried. Answers to the bill and the intervening petition were filed by the city, and an answer to the intervening petition was filed by appellee. After various amendments to these pleadings had been made and filed, replications were filed. The evidence was heard by the chancellor, and on December 19, 1931, after all the evidence had been heard and the cause had been taken under advisement, appellants filed a petition to be allowed to amend their pleadings and to introduce in evidence four ordinances passed by the city council of the city of Chicago on October 21, 1931, which was after the hearing had been closed. The prayer of this petition was denied, and on December 31, 1931, a decree was entered dismissing the intervening petition for want of equity and granting the prayer of the bill filed by appellee. This is an appeal from that decree.

The chancellor has certified that the validity of a municipal ordinance is involved in the decision of the case, and that in his opinion the public interest requires that the appeal be taken to this court.

By an act of the General Assembly of February 17, 1857 (Laws 1857, p. 206), all of fractional township 40 north, range 14 east, in Cook county, except sections 31, 32, and 33 and that part of section 31 lying south and west of the north branch of the Chicago river, was declared to be a township by the name of town of Lake View. By an act of February 11, 1859 (Priv. Laws 1859, p. 29), appellee was incorporated and was authorized to acquire and hold not to exceed 500 acres of land in the township of Lake View for cemetery purposes, with authority to lay out, plat, and ornament such land and to sell burial lots therein. By an act of February 16, 1865 (2 Priv. Laws 1865, p. 484), entitled, ‘An act to incorporate a board of trustees for the town of Lake View, in Cook county,’ the supervisor, assessor, and the commissioner of highways of said town were declared to be ex officio a board of trustees for the town of Lake View, and as such board were given power to cause local improvements to be made in the town by special assessments on the property benefited and power to regulate and license various occupations and to enact police regulations on certain named subjects. By an act of March 5, 1867 (1 Priv. Laws 1867, p. 157), entitled, ‘An act to amend the ‘Act to incorporate a board of trustees for the town of Lake View, in Cook county,’ approved February 16, 1865,' the township of Lake View was declared to be a municipal corporation by the name of town of Lake View, and the board of trustees was given various additional powers, among them the power ‘to fix and determine the location of any cemetery which any person or corporation may hereafter desire to establish or to open in the town of Lake View, and to fix the boundaries of any cemetery, and to prevent the interment of the dead in any place not now actually used as a cemetery or lying within the inclosure of a cemetery now established.’ In 1867 the board of trustees of the town of Lake View enacted an ordinance which provided that ‘no corpse shall be interred in any place within the limits of the town of Lake View not actually used as a cemetery on the fifth day of March, 1867, or lying within the enclosure of a cemetery not established on or before said day.’ The ordinance further purported to fix the boundaries of the cemetery of appellee and to limit the extent of said cemetery to about 60 acres of land. In 1869 the General Assembly passed an act approved March 29, 1869, entitled, ‘An act to amend the charter of the town of Lake View, in Cook county,’ (4 Private Laws of 1869, p. 311), which provided that no new cemetery should be opened in the town of Lake View, or any existing cemetery in said town be enlarged beyond the limits actually inclosed or fixed by ordinance, except in the manner prescribed in the act. The act provided that any person or corporation desiring to establish a new or enlarge an existing cemetery should file an application with the board of trustees of the town, supported by a petition of at least twenty voters of the town; that on such application being filed it should be the duty of the board of trustees to submit the question of granting the application to the legal voters of the town at the next annual election of town officers, and that, if a majority of the legal voters voting at the election voted in favor of the proposition, it should be lawful to open the new cemetery or enlarge the old one. In 1887 the town of Lake View was organized as a city under the Cities and Villages Act by the name of city of Lake View, and in 1889 the city of Lake View was annexed to and became a part of the city of Chicago by proceedings under the general law relating to annexations to cities.

Immediately upon the passage and approval of the act of February 11, 1859, appellee accepted the terms of the charter granted to it and proceeded to purchase land in the township of Lake View, upon which it opened and established a cemetery. Prior to the passage of the above-mentioned ordinance of 1867 by the board of trustees of the town of Lake View, appellee acquired additional land to enlarge its cemetery. After that ordinance was passed and the act of 1869 above mentioned was in effect, the town of Lake View filed a bill to restrain appellee from using lands owned by it outside the boundaries of its cemetery as fixed by the ordinance. It was held and decided in that case that the ordinance and act were invalid in so far as they attempted to prohibit the use by appellee for cemetery purposes of its lands acquired prior to the passage of the ordinance. Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71. Since the decision in that case, appellee has continued to own and operate its cemetery, which is known as Rosehill Cemetery. From time to time it bought additional land, which was added to the cemetery and became a part thereof. At the time its bill was filed appellee owned and operated as a cemetery approximately 320 acres of land located in the township of Lake View. That area was enclosed by fences. The northern boundary of the area is Peterson avenue, which is a paved street about 100 feet in width. About 1928 appellee erected a concrete wall about 7 feet in height along the northern boundary of this area to replace a wire fence that had been there for over thirty years. In the year 1902 appellee purchased a 20-acre tract of land north Peterson avenue. Title to this land was held in the name of other persons until September 5, 1917, when the title was placed in the name of appellee. In the year 1919 appellee purchased a 5-acre tract of land which lies immediately east of the 20-acre tract. These two tracts of land are contiguous and are located in the township of Lake View north of Peterson avenue, by which they are separated from the grounds owned and used by appellee as a cemetery. So far as concerns these 25 acres of land, appellee has never made any attempt to comply with the ordinance of 1867 passed by the board of trustees of the town of Lake View or the act of March 29, 1869.

In 1918 appellee prepared a plat of the 20-acre tract as an addition to its cemetery. This plat was submitted to the superintendent of maps of the city of Chicago, and he refused to approve it because streets and alleys were not laid out through the tract. The plat was then filed with the recorder of deeds of Cook county, and he refused to record it because it had not been approved by the superintendent of maps. Appellee then filed a bill in the circuit court of Cook county against the city of Chicago, the superintendent of maps of the city, and the recorder of deeds to compel the approval and recording of the plat. The city and superintendent of maps demurred to the bill, and, after the demurrer was overruled, did not plead or answer, and the bill was taken as confessed as to them. The recorder filed an answer, and, after a hearing, a decree was entered as prayed for in the bill. No appeal or writ of error to review that decree was prosecuted. In December,1920, the plat of the 20-acre tract was recorded. In 1921 a plat of the 5-acre tract as an addition to appellee's cemetery was filed for record and recorded, and later in that same year a plat of the 20-acre tract and 5-acre tract as one tract and as an addition to appellee's cemetery was prepared, filed for record, and recorded....