Rosehill Cemetery Co. v. Kern

• Decision Date: 26 October 1893
• Docket Number: No. 126.,126.
• Parties: ROSEHILL CEMETERY CO. v. KERN, County Collector.
• Court: Illinois Supreme Court

147 Ill. 483

35 N.E. 240

ROSEHILL CEMETERY CO.

v.KERN, County Collector.

No. 126.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from superior court, Cook county; Philip Stein, Judge.

Bill by the Rosehill Cemetery Company against Charles Kern, county treasurer and ex officio collector of taxes of Cook county, to restrain the collection of certain taxes. Complainant obtained a decree enjoining the collection of only part of such taxes, and it appeals. Affirmed.

Parker & Higgins, for appellant.

James Maher, for appellee.

WILKIN, J.

This was a bill by the Rosehill Cemetery Company to enjoin the collection of a general tax levied on the W. 1/2 of the S. W. 1/4 section 6, township 4 N., range 14 E., Cook county. The theory of the bill is that the property is exempt from taxation. All parties agree that the company is an existing corporation, organized under a special charter, granted by the legislature of this state in 1859. Priv. Laws 1859, p. 29. Section 5 of the charter provides: ‘All lots sold for burial purposes by said cemetery company, when conveyed by the corporation to individual proprietors, shall be indivisible, but may be held and owned in undivided shares, and shall be free from taxation and from execution and attachment; provided, that no one person shall hold at one time more than four lots so exempted; and all estate, real or personal, held by the company, actually used by the corporation for burial purposes, or for the general use of lot holders or subservient to burial uses, and which shall have been platted and recorded as cemetery grounds shall be likewise exempt as above.’ The company acquired in 1873 the land in question for the purpose of sometimes using it for cemetery purposes, as a part of its burial grounds, it being contigous to other lands owned by it, in actual use for such purpose. It is conceded by the bill that it remained subject to taxation up to the year 1890, the tax being paid by it for each preceding year. It is alleged in the bill that it became necessary to devote said eighty acres to burial purposes; and on April 28, 1890, the company resolved that lands be platted for burial purposes, and for the general use of lot owners, and subservient to burial purposes. The plat was duly made, approved, and on April 30, 1890, filed for record, (Book 41, pp. 13 and 14,) Said plaintiff, since the plat was made, has sold in said lands burial lots, and is continuously selling lots, and ever since said plat was made the lands have been actually used for burial purposes, save small lake and little spaces at intersection of open ways, and such portions are held for the general uses of the lot holders and purchasers of burial lots, mainly for ornamental purposes, subservient to burial purposes, and platted and recorded as such. The space marked ‘Dwelling House’ is, and has been, ever since the making of said plat, used by the employes of the plaintiff, who are at work in its grounds, and subservient to burial uses. The space marked ‘Greenhouse’ is used by the company in connection with the cemetery, and is also subservient to burial purposes. This last allegation is denied by the answer, and the real issue in the case is thus formed, viz.: Was this 80-acre tract, or any part of it, so platted and used by the corporation for burial purposes as to exempt it from general taxation for the year 1891, under the provisions of section 5, supra. The finding of the court below upon this issue is as follows: ‘The court finds that the board of managers of said company, on the 28th day of April, A. D. 1890, resolved that said lands be surveyed and platted into lots for burial purposes, and for the general use of the lot holders. On said day said lands were platted into burial lots and grounds for the general use of lot holders. Said plat was duly acknowledged as required by law, and was on April 29, 1890, approved by H. J. Jones, examiner of subdivisions, Cook county, Illinois, and the said plat was by the board of managers of the plaintiff ordered to be placed on record in the recorder's office of said county of Cook; and it was on April 30, 1890, duly filed in the office of said recorder, and was recorded in Book 41 of Plats, pages 13 and 14, of the records of plats of said Cook county. The court finds that at the time of the making of said plat, and at the time of the making of said assessment, said lands were not in open, actual use by the said cemetery company for burial purposes, or for the general use of the lot holders, nor subservient to said burial uses; so that they did not properly constitute grounds actually used by the corporation for burial purposes, or grounds for the general use of the lot holders, or subservient thereto, in the meaning of section 5 of the charter of said corporation, nor were they then used by said corporation for cemetery purposes exclusively as a graveyard or grounds for the burial of the dead, or as subservient thereto, except that part of said lands designated in said plat as ‘Section 109.’ The court finds that said section was in the spring of 1890 made up into grounds for burial lots, the first burial therein having taken place in June, 1890, and that there were subsequent burials in said section prior to the filing of this bill. The said section, from the month of June, 1890, to the time of the filing of this bill, was used exclusively for a part of its graveyard and ground for the burial of the dead. And the court finds that said section 109 was not properly assessed for the taxes of 1891, and is exempt from the taxes of that year.' The collection of the proportionate part of the tax upon this section was accordingly restrained, and the injunction dissolved as to the balance, thus holding about 76 acres of the tract subject to taxation. Only this latter part of the decree is called in question by this appeal.

The following, substantially the testimony of George H. Scott, called by the complainant, gives in detail the manner in which the grounds have been used prior to and since the platting. He says: ‘I am a surveyor in the employ of said complainant, and have been in its employ since 1884. I live on the cemetery grounds now. I am familiar with its grounds and property, and was in 1890. Knew the condition of the grounds in April, 1890. We were making ground that year. Question. In April, 1890, and on the 30th of April, 1890, how many acres were included in the complainant's burial grounds? Answer. About 300 acres, and inclosed by a fence. Q. On the 30th of April, 1890, how many acres of land did the company own, if you know? A. About 270 or 280 acres. The cemetery grounds are in Lake View township, now in Chicago. * * * I know the eighty acres of land described in the bill. It adjoins the other grounds of the cemetery company. It is inclosed in one common inclosure with it. Nothing separates it from the rest of the ground of the company. It has been so inclosed since 1884. I repaired the fence in 1884. In 1886 I leveled and plowed nearly forty acres of this eighty-acre tract, and sowed it with grass seed, to grow sod for the use of the cemetery. In 1884 I put a sewer through it, for the drainage of the cemetery generally. There was no other way by which we could drain the cemetery, with the exception of these twenty-three acres or thereabouts, [referring to the southeast corner of the grounds,] than by way of or through that eighty acres. The ground in the eighty acres is low, and it forms a general watershed of the cemetery. We have greenhouses on it also, in which we raise flowers for cemetery purposes; also barns for housing the horses used for cemetery work; two houses in which I and the gardener live. I made a survey of this eighty acres in 1889. The plat now shown me referred to the eighty acres alluded to, and is the one I made at that time. Mr. Parker: We offer the plat with the acknowledgment and indorsement on it. Q. On the 30th of April, 1890, what use, if any, did the cemetery company make of the ground shown in this plat? A. In the fall of 1889 I began to make section 109, taking out the trees, and finished it the following spring. We grow sod on a part of this tract. The horses kept on this tract are used for general cemetery work exclusively. We grow plants there for cemetery purposes,-for the decoration of graves and the accommodation of patrons. I pay no rent for the house I live in, nor does the gardener. * * * The place marked on the plat ‘Lake’ is the lowest portion of the eighty acres. It is intended as a reservoir, that we may have some extensive pumping apparatus, and gather our water from the lake for the purpose of watering the cemetery generally. There is no other way by which the water can drain the cemetery except down this ridge. Q. Since the 30th of April, 1890, what use has been made of that eighty acres, or any part of it, other than for cemetery purposes? A. None. Q. Since the 30th...