270 
P A R K AND C EM ET ER 
in the cemetery remains in the original pro- 
prietor and his grantees, subject to the 
right of the purchasers, including their 
relatives and friends, to use such avenues 
and driveways for the purpose of going to, 
returning from and visiting said lots ; that 
the right of the purchaser in such plat is 
more analogous to that of a purchaser of 
a pew in a church than to the purchaser of 
a lot within a village or city abutting upon 
a street.” 
Accordingly it was decided that defend- 
ant had no interest in the driveways on 
plaintiffs grounds, and that defendant be- 
came a trespasser in removing a fence 
between the two cemeteries, in leveling off 
grounds within plaintiff’s cemetery to form 
a connection, and in inviting funeral cor- 
teges to pass through plaintiff's grounds. 
In the case of Hildebrand vs. Mount 
Greenwood Cemetery Assn., 12fi 111. App. 
399, the Illinois Appellate Court reversed 
judgment which had been awarded against 
defendant on account of injury to plaintiff, 
caused by her falling into an excavation 
existing on defendant’s grounds. The court 
said : 
“When plaintiff’s father purchased his 
lot he thereby acquired the right of way to 
the lot, and if there was a constructed 
w'alk or avenue leading to his lot from the 
gate of the cemetery, such way was a servi- 
tude in favor of the lot. . . . Rut if there 
was such prepared way, he did not acquire 
. . . any right of way to the lot over the 
grounds of the cemetery used or intended 
for burial purposes. Manifestly, the plain- 
tiff who, as she testified, visited the ceme- 
tery by direction of her father, for the 
purpose of decorating her sister’s grave in 
his lot, had no greater right than her 
father. In returning from the grave of 
her deceased friend to her father’s lot she 
might have done so by a safe and con- 
venient walk, without encroaching on any 
part of the cemetery intended for burials, 
but she chose, solely for her own con- 
venience, to cross the grounds thus, as she 
says, making a short cut to her father’s 
lot. It is for the convenience of the own- 
ers of lots in a cemetery and to their in- 
terest, that the proprietors of the cemetery 
shall construct safe and convenient ave- 
nues and ways for access to the burial lots, 
and when this is done every lot owner has 
an implied license to use such means of ac- 
cess, but has no license to roam over the 
grounds for his own pleasure or conveni- 
ence, and if one so does, it is at his own 
risk, and if he suffers injury in so doing, 
the proprietors of the cemetery are not 
liable. The grounds of the cemetery, out- 
side of the avenues or ways provided for 
access to lots, are not intended for w'alking 
in, but solely for burial purposes.’’ 
RIGHT TO EXCLUDE PERSONS. 
In the case of Graves vs. City of Bloom- 
ington, 67 111. App. 493, decided in 1896, 
Graves was convicted of assault in forcibly 
excluding prosecuting witness from a cem- 
etery of which the former was superin- 
tendent. The conviction was sustained on 
the ground that the prosecuting witness 
was unreasonably prevented from entering 
the cemetery for the purpose of watering 
flowers on graves, as she had been em- 
ployed to do by the lot owners. The Ap- 
pellate Court held that although the char- 
ter of a cemetery association may confer 
a private franchise, yet the use made of it 
necessarily impresses it with a public char- 
acter in some degree, and that when lots 
are sold for burial purposes, the purchaser 
acquires the right to visit the same and to 
improve and care for such lots either in 
person or by agent. But those seeking ad- 
mission must come during proper hours 
and for proper purposes, and when admit- 
ted must observe the decorum of such a 
place, and the superintendent may exclude 
any whose presence or conduct is unseemly 
or indecent. 
Since the cemetery in question does not 
appear to have previously adopted any reg- 
ulation providing for care of all lots under 
the direct control of the cerhetery authori- 
ties, there is nothing in this decision at 
variance with other court holdings recog- 
nizing the right of cemeteries to adopt 
reasonable regulations covering such mat- 
ters, provided that the regulations operate 
without discrimination. 
REGUL.VTIONS MUST BE UNIFORM. 
Where a cemetery company’s charter au- 
thorizes the governing authorities to make 
such rules and regulations for the govern- 
ment of lot owners and visitors as may 
he deemed necessary, they may make them, 
hut the rules and regulations must be rea- 
sonable, equal in their operation, and uni- 
form in their application to all owners of 
lots in the cemetery. The managers of the 
cemetery may not adopt a valid rule con- 
ferring a right upon one owner in regard 
to the improvement of his lot, and deny 
the same right to another lot owner. So 
a rule against the erection of vaults upon 
lots must be general in its operation and 
not discriminatory against one or a few 
owners. A rule that "no vault shall be 
built entirely or partially above ground 
without permission of the company,” ta- 
ken in connection with another rule to the 
effect that no vault shall be so constructed 
until the designs and specifications, with a 
diagram of location, etc., shall have been 
submitted and approved by the board of 
managers of the cemetery, can not be re- 
garded as prohibiting the erection of a 
vault : and in the absence of a rule prohib- 
iting such erection as to all persons, the 
board of managers have no power to es- 
tablish a rule governing a particular case. 
In this case, and acting under a rule re- 
quiring designs, etc., to be submitted, no 
objection was made to the designs or speci- 
fications submitted by plaintiff, a lot owner, 
and the question of granting leave for the 
vault was left to the decision of the ceme- 
tery’s landscape gardener, who reported 
against the improvement. Many other 
vaults had been constructed without objec- 
tion by the cemetery authorities. Held, 
that under these circumstances plaintiff 
was entitled to enjoin interference with 
the construction of the vault. (Rosehill 
Cemetery Co. vs. Hopkinson, 114 111. 209, 
decided May 15, 1885.) 
NATURE OF A LOT OWNEr’s TITLE. 
The sale of lots in a public cemetery does 
not pass title in fee, but assures to the 
grantee an easement for burial purposes so 
long as the ground is used for a cemetery, 
and this right passes to the grantee’s fam- 
ily at his death. The trustees of a ceme- 
tery, after conveying a lot to one person, 
have no power to subsequently apply the 
lot, or any portion thereof, to the use of 
another person, unless the original grantee 
or his successors have abandoned the lot. 
Ownership in a cemetery lot which had 
been recognized by the trustees for more 
than forty years could not be disturbed be- 
cause the record books failed to show, 
upon their face, that the grantee had paid 
for the lot, particularly where such books 
are shown to have been carelessly kept. 
( MeWhirter vs. Newell, 2(19 111. 583, de- 
cided Feb. 18, 1903.) 
Where a cemetery association sold a 
certain lot to plaintiff at a time when lot 
owners were privileged to arrange for the 
digging of graves by their own employes, 
and the cemetery was later transferred to 
a city, the city could not, as against such 
purchaser, cut off this right by adopting 
an ordinance providing that no grave 
should thereafter be dug in the cemetery 
except by permission of and under the 
direction of the city sexton, so long as 
the work should be done in a safe and 
proper manner. But the ordinance would 
be valid as to persons buying lots after 
adoption of the ordinance. (Richey vs. 
City of Canton, 46 111. App. 185, decided 
April 11, 1892.) 
RACIAL DISCRIMINATIONS. 
Although the Illinois statutes expressly 
forbid discrimination in the prices to be 
charged for lots in cemeteries on account 
of race or color, there is nothing in the 
law or in the state or federal constitution 
to require a cemetery corporation, which 
has no power to condemn land for ceme- 
tery purposes (on the theory that it is 
thrown open to the public) and which has 
no monopoly of the burial places in the 
particular vicinity, to sell a lot to a col- 
ored person and admit his wife’s body for 
liurial, altbough the refusal be based solely 
upon the ground of color. The mere fact 
that the cemetery’s grounds are exempted 
from taxation does not constitute the cor- 
poration a public utility. (People vs. For- 
est Home Cemetery Co., 258 111. 36, de- 
cided April 3, 1913.) 
POLLUTION OF NEARBY STREAMS. 
Pollution of the waters of a stream used 
for domestic purposes, watering cattle, 
harvesting ice, etc., by a sewer draining the 
wet portions of cemeteries may be enjoined 
b}' the aggrieved parties. It is not for jus- 
tification for threatened pollution in such 
case that the waters may to some extent 
be rendered unwholesome by other causes, 
