Appeal from the Superior Court of Cook county; the Hon.
ABRAHAM L. MAROVITZ, Judge, presiding. Decree and order affirmed.
THE COURT ADOPTS THE FOLLOWING OPINION, WRITTEN BY JUDGE NIEMEYER, AS THE OPINION OF THE COURT.
Rehearing denied September 27, 1957.
Three of the original plaintiffs and 106 individuals, owners of or interested in burial lots and grave sites in Oakridge Cemetery, owned, operated and maintained by defendant Oakridge Cemetery Corporation, hereafter called The Cemetery, appeal from a decree dismissing for want of equity the complaint of the original plaintiffs to enjoin the erection by defendant Village of Westchester, hereafter called Westchester, of a steel water standpipe and a pumphouse on a parcel of land 100 feet square, hereafter called the "subject site," which The Cemetery had contracted to sell and has conveyed to Westchester, and for other related relief. Forty-three of the individual appellants also appeal from an order denying their petitions to become additional parties plaintiff. These appeals, taken direct to the Supreme Court, have been transferred to this court and consolidated here for hearing and disposition. Defendants do not concede the right of the 106 individual appellants to join in this appeal. However, they do not object, as they say that no inconvenience or delay will result from the joinder. We do not pass on the right of these parties to appeal. All appellants are hereafter called plaintiffs.
The Cemetery was organized in February, 1917 as a corporation for profit under the General Corporation Act of 1872, as amended, to ". . . own, maintain and operate a cemetery and to acquire by purchase, or otherwise, lands for cemetery purposes, . . . and to dispose of said lands . . . for the purpose of the burial of the dead." It acquired the 118 acre tract on which Oakridge Cemetery is now located. Some of the land was then devoted to cemetery purposes. All the land, except a parcel of approximately nine acres, hereafter called the "utility tract," in the southeast corner of the cemetery, has been platted for burial purposes, with appropriate driveways and walks affording access to the burial lots and single grave sites. Although there is a dispute as to the use of the utility tract since 1917, it is undisputed that there were no burials in the tract. A part was used as a sod nursery and a place to store and burn used flowers and grave decorations and to pile leaves and black dirt. The remainder of the tract was planted with grass and kept in a park-like condition. There are unsold 31,700 grave sites in platted lots and a large number in single grave sites in sections not platted into lots. Representatives of The Cemetery testify that if sales do not exceed the average of recent years these grave sites will not be disposed of in less than fifty years.
The southern boundary of The Cemetery and the northern boundary of Westchester are contiguous. The subject site extends 100 feet along the boundary line between the defendants and 100 feet north into the utility tract. Its east line is 784 feet west of the east line of The Cemetery and its west line is a little more than 100 feet east of burial grounds of The Cemetery. Westchester owns and operates a municipal water supply and distribution system. The City of Chicago furnishes water to Westchester and the villages of Broadview and LaGrange Park under contracts the material terms of which are stated in Baltis v. Village of Westchester, 3 Ill.2d 388. On February 22, 1955, Westchester by ordinance authorized the purchase of the subject site, on which to erect a standpipe and pumphouse. By deed dated April 6, 1955 The Cemetery conveyed the property to Westchester in consideration of $17,000. The deed contained no restrictions on the use of the property by the grantee. Two controlling questions are presented on this appeal. Can The Cemetery legally convey the subject site to Westchester? Is the erection of a standpipe and pumphouse on the subject site permissible under the zoning ordinance of the County of Cook?
Plaintiffs contend that the deed from The Cemetery to Westchester is void; that The Cemetery lacks power to convey land except for burial purposes. They rely on an act of 1895 (Ill. Rev. Stats. 1955, Cemeteries, Chap. 21, par. 29) amending section 1 of "An Act in relation to cemeteries" (Laws of Illinois, 1891, page 86) by striking therefrom the words "not exceeding twenty acres," so that the section as amended reads as follows:
"That all cemetery associations, or companies incorporated for cemetery purposes, by any general or special law of this State may acquire by purchase, gift or devise, and may hold, own and convey for burial purposes only, so much land as may be necessary for use as a cemetery or burial place for the dead."
The General Corporation Act of 1872 (Ill. Rev. Stats. 1874, page 285) authorized the forming of corporations for profit for any lawful purpose (except banking, insurance, etc., not material here), including "organizations for the purchase and sale of real estate for burial purposes only" (Laws of Illinois, 1879, page 82), with power to "own, possess and enjoy so much real and personal estate as shall be necessary for the transaction of their business," and to "sell and dispose of the same when not required for the uses of the corporation."
The statute of 1891 is a single section, one sentence act, restricting the land which a cemetery corporation might acquire and hold to "not exceeding twenty acres." When this restriction was stricken by the amendment of 1895, because, as plaintiffs say, it "apparently proved too inelastic, at least for cemeteries in the larger metropolitan communities," the statute was identical in effect with the General Corporation Act of 1872, which limited the land, which corporations for cemetery and burial purposes formed thereunder could own and possess, to "so much . . . as shall be necessary for the transaction of their business," and restricted the sale of such land to sales for "burial purposes only."
[1-3] The restriction on sales of land, in carrying on the business of the corporation, to sales "for burial purposes only" has no connection with the right to sell and dispose of land lawfully acquired but no longer necessary for the corporate business. In selling land for burial purposes only, a cemetery corporation does not transfer title in fee. It grants an easement for burial purposes only. Brown v. Hill, 284 Ill. 286. In disposing of unneeded lands the corporation divests itself of all title to the land. It acts in compliance with the policy of the state not to permit corporations to own real estate beyond what is necessary for their corporate business. National Home Bldg. & Loan Assn. v. Home Savings Bank, 181 Ill. 35, 42; Carroll v. City of East St. Louis, 67 Ill. 568. If it does not act, the state may by appropriate action compel it to act.
The Act of 1872 expressly authorized corporations, including those for cemetery purposes formed thereunder, to sell and dispose of land not required for the uses of the corporation. The statutes of 1891 and 1895 were silent on this subject. The power given in the Act of 1872 existed independent of the statute. In Gulf Lines Connecting R. v. Golconda Northern Ry., 290 Ill. 384, in speaking of the power of a corporation, organized under the act providing for the incorporation of railroad companies, to dispose of land which it could no longer use for corporate purposes, the court said (p. 391):
"Ownership of land by a corporation carries with it the power of disposition, if such power is not restrained by statute or considerations of public policy. (7 R.C.L. 571.) The Toledo Company during the ten-year period had lawful power and authority to acquire, by purchase, title in fee simple for necessary right of way for its line of railroad. When it failed to complete its road within ten years it ceased to have the right to build it, but it still held title to the land it had purchased and had the right to convey it. (3 Thompson on Corp. secs. 2369, 2807.)"
Corporations are required to dispose of excess land. In Calumet and Chicago Canal and Dock Co. v. Conkling, 273 Ill. 318, the right of the dock company to sell land not needed for corporate purposes was involved. The company was created by a special act and given power to "purchase, possess and occupy real and personal estate" and to "sell, lease ...