The 
r.lRK AND CEMLiTllRV 
269 
Cemetery Law of Illinois 
A Digest of Important Illinois Decisions on Cemetery Law and 
of the Statutes of the State Affecting Cemeteries by A. L. H. Street. 
Many of the rules of law relating to 
cemeteries depend upon court decisions, 
rather than upon statutes, because enact- 
ments of the legislature cannot be found 
to cover every practical question arising in 
the control and management of burial 
grounds. If there is a specific statute cov- 
ering a given point; that is, of course, con- 
trolling upon the courts. But since it is 
the province of a judge to interpret the 
language used by legislators, especially 
where it is doubtful in meaning, and to 
blaze a le.gal trail where there is no statute 
to guide, it follows that the body of court 
decisions constitute a most important 
branch of cemetery law. 
And as may naturally be expected it is 
in the older and more populous states that 
perplexing questions relating to cemetery 
law have most frequently arisen. Among 
such states, the law reports of Illinois 
afford interesting study, not only for the 
cemetery man of that state, but for the 
resident of any other commonwealth, in 
that the decisions of the Illinois Supreme 
Court have persuasive force with judges 
in other jurisdiction. For the interest of 
readers of P.akk and Cemetkry, I have 
prepared the following abstract of the 
most important opinions of that high court, 
which will be found to cover a very broad 
and instructive field. 
STATUS OF ASSOCIATIONS. 
There is nothing in the nature or objects 
of a cemetery association which necessarily 
impresses upon its property or revenues a 
trust character. A provision in the special 
charter of a cemetery association that it 
shall hold the lands to be purchased “in 
trust for the purpose of interment and a 
repository of the dead forever,” does not 
impress a trust cliaracter upon the rev- 
enues derived by the association from the 
sale of burial lots, concerning which a 
different charter provision is made. A 
provision in such charter that the ceme- 
tery association shall, out of the proceeds 
of sales of lots, “keep the grounds in re- 
pair and in good order, ’ does not charge 
the association with the duty of caring for 
and keeping in repair lots which have been 
sold to individuals for burial purposes. 
Under such charter, after suitable provi- 
sion is made out of the proceeds of sales 
for keeping the grounds in good order and 
repair, the surplus belongs to the members 
of the association, and may lawfully be 
divided among them. Suit brought upon 
the theory that an association acting under 
such a charter is a charitable trust, the lot 
owners being the beneficiaries, and seeking 
to prevent the devotion of any part of the 
association’s revenues to the private use 
of the members, is properly dismissed, 
where it is sought to have the court virtu- 
ally take and administer the cemetery as a 
trust, and tlie proof fails to show that the 
association has neglected to keep the 
grounds, excepting lots already sold for 
burial purposes, in good order. (Bourland 
vs. Springdale Cemetery Assn., 1^8 111. 
458. Decided Oct. 11, 1895.) 
DEDICATION AND DESECRATION. 
No particular form is necessary to con- 
stitute a dedication of land for burial pur- 
poses. All that need be shown is the as- 
sent of the owner, and the fact that the 
“land is used for the public purposes in- 
tended by him. Staking off ground as a 
cemetery and permitting burials therein 
amounts to a dedication. It has been held 
that the notorious use of property for 
twenty years for burial purposes with the 
acquiesence of the owner affords presump- 
tive evidence of its dedication for such 
purposes. Having made a dedication of 
his land to this use, the original owner or 
his successor in title may be enjoined 
against molesting the graves in any man- 
ner. The injunction suit may be main- 
tained by any person having relatives or 
friends interred in the grounds in question. 
(Wormley vs. Wormley, 207 111. Ill, de- 
cided Feruary 17, 1904.) To the same ef- 
fect is the decision in Davidson vs. Reed, 
111 111. 167, decided in 1884. 
STATUS OF UNPLATTED LANES. 
In a proceeding by a railway company to 
condemn land owned by a cemetery com- 
pany, the railway company is entitled to 
prove, on the question of right to appro- 
priate and of damages, that the land is not 
actually used for burial purposes and is 
not adapted to such use. A mere convey- 
ance of land to a corporation empowered 
to conduct a cemetery does not auto- 
matically convert the property into burial 
grounds. Lands not devoted to burial pur- 
poses would not become a part of the 
cemetery by merely being within the same 
enclosure. What creates the cemetery is 
the act of setting the ground apart for 
the burial of the dead, marking it, and 
distinguishing it from the adjoining 
ground, as a place of burial. (Concordia 
Cemetery Assn. vs. Minnesota & North- 
western Railroad Co., 121 111. 199, decided 
June 17, 1887.) 
CEMETERY AS A NUISANCE. 
Charter power given a municipality to 
abate nuisances does not authorize adop- 
tion of an ordinance prohibiting contem- 
plated establishment of a cemetery. This 
preventive power could only be exercised 
in reference to things necessarily consti- 
tuting nuisances. A cemetery is not neces- 
sarily a nuisance, whether it is so or not 
depending upon the particular surrounding 
circumstances. A cemetery may be so 
placed as to be injurious to the public 
health, and therefore a nuisance. It may, 
on the other hand, be so located and ar- 
ranged, so planted with trees and flower- 
ing shrubs, intersected with drives and 
walks, and decorated with monumental 
marbles as to be no less beautiful than a 
public landscape garden, and as free from 
all reasonable objection. (Town of Lake 
View vs. Letz et ah, 44 111. 81, decided in 
1867.) 
Although the legislature is amply em- 
powered to pass laws regulating the inter- 
ment of the dead, so as to prevent injury 
to the public health, and although use of 
land may thereby be restricted, it was be- 
yond the power of the legislature, after a 
cemetery company had been chartered to 
acquire land to the extent of 5(lij acres, 
and after the land had been acquired and 
improved for burial use, to enact a law 
purporting to prevent the company from 
using any of such lands outside its then 
inclosure, for the burial of the dead, espe- 
cially on it appearing that the land was 
situated at a proper distance from any 
populous community and was well adapted 
to cemetery use. (Lake View vs. Rose 
Hill Cemetery Co., 7t) 111. 191, decided in 
1873. ) 
CONFLICTING CEMETERY NAMES. 
Where a cemetery which had been 
known for fifty years as the Mount Hope 
Cemetery was taken over by a corporation 
organized under the name, “The Mount 
Hope Cemetery Association,” the use of 
the name "The New Mount Hope Ceme- 
tery Association" by a subsequently organ- 
ized and competing company owning an 
adjoining tract of land will be enjoined as 
having an unfair tendency to lead persons 
to believe that the new burial grounds con- 
stitute part of the old and well-known 
cemetery. ( Mount Hope Cemetery Assn, 
vs. New Mount Hope Cemetery Assn., 246 
111. 416, decided October 28, 1910.) 
RIGHTS IN DRIVEWAYS, ETC. 
In the last cited case, defendant sought 
to establish the right of the public to use 
the avenues, driveways, etc., in plaintiff’s 
burial grounds as a means of entrance to 
and exit from defendant’s adjoining ceme- 
tery, although defendant had direct access 
to the public streets and highways abutting 
upon its grounds. In holding that defend- 
ant could not enforce this right, the court 
said : 
“When a proprietor of land plats the 
same into lots, blocks, avenues and drive- 
ways for cemetery purposes and sells lots 
according to such plat for burial purposes, 
we think the proprietor of said cemetery 
retains the control over the cemetery 
grounds, subject only to the rights of the 
lot owners who have purchased lots, and 
that the title to the avenues and driveways 
