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Bogner v. Villiger

August 29, 2003

THOMAS E. BOGNER, LINDA L. LINK, HAROLD A. SHEARER, MARY ANN FINNEGAN, DR. MARGARET ANN LOUIS, LARRY E. NAUMAN, THOMAS J. NAUMAN, DAVID L. NAUMAN, DONALD PAUL SMITH, JOSEPH BENDER, THOMAS J. DIETZLER, AND WILLIAM P. ASHERMAN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
KENNETH J. VILLIGER, AND GERALD C. VILLIGER, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the Tenth Judicial Circuit, Marshall County, Illinois No. 01-L-02 Honorable Scott Shore, Judge Presiding.

The opinion of the court was delivered by: Justice Schmidt

UNPUBLISHED

This is an appeal from an order issued by the circuit court of Marshall County which grants a permanent injunction prohibiting defendants, Kenneth Villiger and Gerald Villiger, from operating an irrigation system through a cemetery. The plaintiffs are a class of people all having ancestors buried in the cemetery. Defendants appeal.

BACKGROUND

In 1974, the defendants purchased approximately 170 acres of unirrigated farmland. Located within the boundaries of this farmland lies a cemetery, known as the Old Catholic Cemetry, which spans .4 acres. Approximately 112 graves are located within the cemetery. Burials commenced in the cemetery around 1843. In 1847, ownership of the cemetery was assumed by the Roman Catholic Diocese of Peoria.

In 1979, the defendants purchased an irrigation system for the property. This irrigation system traversed the property suspended above ground by an in-line tandem wheel assembly which supports a horizontal bar that delivers water to the ground below.

In 1996, defendants purchased a new irrigation system. The new system also travels over the property suspended above the ground by an in-line tandem wheel assembly. Both the 1979 system and 1996 system passed through a portion of the cemetery traveling over both graves and headstones. The newer 1996 system's path was nine feet east and parallel to the path used by the 1979 system.

The path of the 1979 system took it over the graves of Augusta B. Acherman, Mary Green, Thomas R. Lloyd, and Katherine Weiss. Plaintiff William P. Asherman is the great-grand nephew of Augusta B. Acherman.

The path of the 1996 system takes it over the graves and headstones of John V. Mattern, Catherine Downey and John Downey. Two of the named plaintiffs, Thomas J. Dietzler and Thomas E. Bogner, are the great-great-grand nephews of John V. Mattern.

The plaintiffs filed this action seeking an injunction to prevent the defendants from operating their irrigation system through the cemetery. The defendants filed affirmative defenses of laches and claimed to have acquired a right to operate the irrigation system through the cemetery by way of prescriptive easement. The circuit court found laches to be inapplicable and struck it as an affirmative defense. The circuit court further found that the defendants did not prove their prescriptive easement affirmative defense. The court ruled in favor of the plaintiffs and granted the injunction.

Defendants appeal, claiming it was error to strike defendants' laches defense and that the court improperly ruled against them on their prescriptive easement defense. They add, on appeal, that the plaintiffs did not show they had a clear and ascertainable right in need of protection or that irreparable harm would result from allowing the irrigation system to operate.

ANALYSIS

Plaintiffs' Property Rights

After burial, the relatives of the deceased acquire certain rights that permit them to go to the grave of the deceased and give it attention, care for and beautify it. Smith v. Ladage, 397 Ill. 336, 74 N.E.2d 497 (1947). Illinois courts have long held that relatives of those buried in cemeteries acquire an easement that ...


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