Steele v. Rosehill Cemetery Co.

• Decision Date: 14 February 1939
• Docket Number: No. 24803.,24803.
• Citation: 370 Ill. 405,19 N.E.2d 189
• Parties: STEELE v. ROSEHILL CEMETERY CO.
• Court: Illinois Supreme Court

370 Ill. 405

19 N.E.2d 189

STEELE

v.ROSEHILL CEMETERY CO.

No. 24803.

Supreme Court of Illinois.

Dec. 15, 1938.

Rehearing Denied Feb. 14, 1939.

Suit by William Knox Steele against the Rosehill Cemetery Company for the removal of an alleged cloud on the plaintiff's title to a burial lot in the cemetery, the repayment of money and certain injunctive relief. The complaint was dismissed for want of equity, and William Knox Steele appealed to the Appellate Court. The Appellate Court, 294 Ill.App. 568, 14 N.E.2d 241, granted the injuncitve relief, ordered repayment of money prayed for, and denied relief on the alleged title cloud. A certificate of importance issued by the Appellate Court brought the case to the Supreme Court on the appeal of the Rosehill Cemetery Company. William Knox Steele assigned a cross-error.

Affirmed in part, reversed in part, and remanded with directions.

STONE, J., dissenting.Appeal from First Appellate Court, First Division, on Appeal from Circuit Court, Cook County; Cornelius J. Harrington, Judge.

Ashcraft & Ashcraft, of Chicago (Carroll J. Lord and Rufus D. Beach, both of Chicago, of counsel), for appellant.

Francis M. Lowes, of Chicago, for appellee.

ORR, Justice.

William Knox Steele, appellee, filed a complaint in equity in the circuit court of Cook county against the Rosehill Cemetery Company, seeking certain injunctive relief, repayment of money, and the removal of an alleged cloud on his title to a burial lot in the cemetery. The complaint was dismissed for want of equity and, on appeal, the Appellate Court for the First District granted the injunctive relief, ordered repayment of money prayed for and denied relief on the alleged title cloud. A certificate of importance issued by the Appellate Court brings the case here and appellee has assigned a cross-error.

The cemetery was incorporated by special act in 1859, the act constituting its charter. In 1863, Priv.Laws 1863, p. 174, it obtained from the legislature an amendment to its charter in order to establish a trust fund, the income from which was to be used to keep the cemetery from neglect. In 1866, the cemetery sold to H. M. Thompson and D. R. Holt a large burial lot for $600. By the provisions of the amendatory act of 1863, ten per cent of this sum was paid into the trust fund. In 1883, Thompson and Holt amicably partitioned their lot, Thompson receiving an area of 4670 square feet. He died in 1892, leaving his adopted daughter as his heir, and when she died in 1926, appellee, as sole heir, succeeded to her title.

From 1859, when the cemetery was started, until 1922 or 1923, it made no charge for cutting the grass upon lots it had sold. According to the testimony of its vicepresident, labor charges became so high it was compelled to fix a charge of 1 cent per square foot per year for cutting the grass on its lots. It cut the grass upon appellee's lot of its own volition and without his express consent. It refused permission for burial of appellee's wife in the lot until he first paid accumulated grass cutting charges of $151. This he paid, under protest, in order to bury his wife with her relatives, and this amount he now seeks to recover. Shortly after the death of his wife, appellee took up with the cemetery officers the question of a sale of two portions of the lot on which no bodies were buried and which he did not need for his own burial. The portions would comprise about one-half the area of the lot. The officers offered to consent to the sale if appellee would first pay to it the sum of $3878.95, of which $3030 would be the cost of putting the sold portions, and the part which would remain to appellee, under perpetual care. The remainder would go for filling, grading and seeding the area and pay the grass cutting charges since 1926, in the amount of $403. These negotiations were fruitless and the filing of this suit followed. Since 1902, the cemetery has not sold a lot unless the purchaser has paid to it a sum to insure its perpetual care.

In Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209, 29 N.E. 685, we held the appellant to be a quasi-public corporation, whose trustees are ‘bound to exercise their rights and privileges fairly and impartially; and if they undertake to act arbitrarily, or transcend their powers to the injury of a lot-owner, their action may be reviewed and controlled.’ Brown v. Hill, 284 Ill. 286, 119 N.E. 977, held a cemetery lot purchaser takes only an easement right of burial, to be used in accordance with the reasonable rules of the cemetery; he has a property right the law will protect. His remedy is commensurate with his rights, even to the use of injunctive processes to uphold them. A court of equity, when the right is clear and certain, will restrain an injurious interference with the enjoyment of an easement. Espenscheid v. Bauer, 235 Ill. 172, 85 N.E. 230. There is no dispute but what the appellee possesses the right to sell portions of his lot, subject to the consent of the cemetery, and that its consent cannot be withheld because of the existence of an unlawful or unreasonable rule or restriction, such as would deny a lot owner the right of its reasonable use and enjoyment. Equity is the proper forum in which to restrain any interference of the reasonable exercise of appellee's lawful rights in the lot. The same forum, having assumed jurisdiction for equitable purposes, will dispose of the other incidental legal matters. The Appellate Court was correct in holding the circuit court erred in dismissing the complaint.

It is elementary that the cemetery cannot make rules or restrictions that would transcend the rights and powers granted in the charter of 1859 and the amendatory act of 1863. The business of the appellant is conducted by a statutory board of managers. Section 4 of the act of 1859 gave the managers authority to arrange the acreage in burial lots and ‘dispose of burial lots on such terms and with such conditions for the permanent care and preservation of the cemetery, or any part thereof, as they may agree upon with the purchasers; * * * and to make such rules and regulations from time to time, for the government of lot holders and visitors to the cemetery as they may deem necessary.’ Section 5 prohibited individual lot holders from dividing their lots, providing that lots may be ‘held and owned in undivided shares, and shall be free from taxation and from execution,’ etc. Section 6 provided that a lot, when sold, shall be used only for purpose of sepulture and ‘shall be transferable only by the consent of the managers,’ etc. The deed recited that it was made ‘subject, however, to the provisions and restrictions' of the special act of 1859 and of the amendatory act thereto and also ‘subject to the conditions and limitations, and with the privileges and restrictions specified in the rules and regulations hereto annexed, and which are made a part of the conveyances, or which the said company may hereafter...