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No. 3-02-1030

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

BACKGROUND

In 1974, the defendants purchased approximately 170 acres ofunirrigated farmland. Located within the boundaries of thisfarmland lies a cemetery, known as the Old Catholic Cemetry,which spans .4 acres. Approximately 112 graves are locatedwithin the cemetery. Burials commenced in the cemetery around1843. In 1847, ownership of the cemetery was assumed by theRoman Catholic Diocese of Peoria.

In 1979, the defendants purchased an irrigation system forthe property. This irrigation system traversed the propertysuspended above ground by an in-line tandem wheel assembly whichsupports a horizontal bar that delivers water to the groundbelow.

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

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

The path of the 1996 system takes it over the graves andheadstones 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 toprevent the defendants from operating their irrigation systemthrough the cemetery. The defendants filed affirmative defensesof laches and claimed to have acquired a right to operate theirrigation system through the cemetery by way of prescriptiveeasement. The circuit court found laches to be inapplicable andstruck it as an affirmative defense. The circuit court furtherfound that the defendants did not prove their prescriptiveeasement affirmative defense. The court ruled in favor of theplaintiffs and granted the injunction.

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

ANALYSIS

Plaintiffs' Property Rights

After burial, the relatives of the deceased acquire certainrights that permit them to go to the grave of the deceased andgive it attention, care for and beautify it. Smith v. Ladage,397 Ill. 336, 74 N.E.2d 497 (1947). Illinois courts have longheld that relatives of those buried in cemeteries acquire aneasement that must be used subject to and in accordance with thereasonable bylaws of the cemetery. McWhirter v. Newell, 200 Ill.583, 66 N.E. 345 (1903). It is this property right by easementin the burial plot which lead our supreme court to state "the lawrecognizes and protects from invasion whether it be by a meretrespasser or from the unauthorized and illegal acts of theauthorities in control." Smith v. Ladage, 397 Ill. at 341. TheSmith court went on to explain these rights by noting, "we holdthat plaintiffs having relatives buried in the cemetery have aright to enter on such cemetery to care for the graves of thedeceased relatives, that such right is an easement of indefiniteduration and is such a freehold estate." Smith v. Ladage, 397Ill. at 341.

There can be no doubt the plaintiffs herein, havingrelatives buried in Old Catholic Cemetery, have a property rightin that .4-acre parcel of land located within the defendants'farm. While this right may only be in the form of an easement,it is a protectable right nonetheless. "It is well settled thata court of equity will enjoin the owner of land from defacing ormeddling with graves on land used for public burial purposes, atthe suit of any party having deceased relatives or friends buriedtherein." Brown v. Hill, 284 Ill. 286, 293-94, 119 N.E. 977, 980(1918).

Laches Affirmative Defense

To determine the proper standard of review for this issue,it is necessary to examine the exact manner in which the trialcourt disposed of the affirmative defense of laches. If a trialcourt determines, after considering the merits of the case, thatthe defense of laches is simply inapplicable to that particularcase, then such a ruling will be reviewed under an abuse ofdiscretion standard. Smith v. Intergovernmental Solid WasteDisposal Ass'n, 239 Ill. App. 3d 123, 605 N.E.2d 654 (1992). Whether a party is guilty of laches to a degree that would barsuit due to a delay in asserting a right is a matter within thetrial court's discretion. City of Rockford v. Suski, 307 Ill.App. 3d 233, 718 N.E.2d 269 (1999). However, when a trial courtstrikes the defense of laches finding it is inadequate as amatter of law, we review the granting of the motion to strikeunder a de novo standard. Smith v. Intergovernmental Solid WasteDisposal Ass'n, 239 Ill. App. 3d at 134; Betts v. ManvillePersonal Injury Settlement Trust, 225 Ill. App. 3d 882, 588N.E.2d 1193 (1992); Zientara v. Long Creek Township, 211 Ill.App. 3d 226, 569 N.E.2d 1299 (1991).

Here, the plaintiffs moved pursuant to section 2--615 of theCode of Civil Procedure (735 ILCS 5/2--615 (West 1998)) to strikethe affirmative defense of laches claiming that "[t]he defense issubstantially insufficient in law." In an order dated June 14,2002, the trial court granted plaintiffs' motion to strike thedefense of laches. The circuit court did not review the meritsof the case and find the defense of laches inapplicable. Rather,it granted a motion to strike finding that laches was inadequateas a matter of law to bar the plaintiffs' suit. Accordingly, theproper standard of review is de novo.

"In general, laches is such a neglect or omission to asserta right, taken in conjunction with a lapse of time of more orless duration, and other circumstances causing prejudice to anadverse party, as will operate to bar relief in equity." Meyersv. Kissner, 149 Ill. 2d 1, 12, 594 N.E.2d 336 (1992). Webelieve the trial court acted properly in striking the lachesdefense as the record indicates the plaintiffs did not neglect toassert a right for a significant period of time. Furthermore,the record indicates the defendants suffered no prejudice.

In 1996, the defendants moved the track of the oldirrigation system nine feet. The new track damaged the gravestones and graves of two of the named plaintiffs' ancestors. Theold track did not pass over the same graves. Plaintiff ThomasBogner noticed the path of the 1996 irrigation system travelingover his ancestor's graves and began to document the damagecaused by the irrigation system as early as 1997. Defendant KenVillager testified that Thomas Bogner first complained about thissituation in May of 1997. He also formally complained to theRoman Catholic Diocese of Peoria in 1999. In 2000, correspondencewas directed to the defendants asking them to cease theiroperation of the irrigation system through the cemetery. OnMarch 7, 2001, this suit was filed.

Clearly, the duration of time from which the irrigationsystem began to traverse over the graves of Thomas Bogner'sancestors until he asserted his rights is not such that theequitable doctrine of laches would bar the bringing of this suit.

Moreover, the defendants' claim of prejudice also is flawed. They assert that their expenditure of $66,000 in 1996 for a newirrigation system after operating a different irrigation systemfor 17 years with only minor complaints is enough to meet theprejudice requirement of a laches defense. We disagree.

Ken Villager testified that the defendants derive anadditional $30,000 a year from increased yields as a result ofthe operation of the irrigation system. They operated the systemfor at least the 1997, 1998, 1999, 2000, 2001 and 2002 harvestseasons. Their $60,000 investment has already returned at least$180,000 in additional revenue by their own testimony. As thedefendants have recouped their investment times three, it is hardto see how any delay in asserting a right has prejudiced thedefendants. To the contrary, had the plaintiffs enjoined the newsystem immediately, defendants would have suffered a loss oftheir investment. Accordingly, we find the trial court properlystruck defendants' laches affirmative defense.

Prescriptive Easement Affirmative Defense

To establish an easement by prescription, a party must provethat the use of the land was adverse, exclusive, continuous, andunder a claim or title inconsistent with that of the true owner.Sparling v. Fon du Lac Township, 319 Ill. App. 3d 560, 745 N.E.2d660 (2001). Whether a party has established an easement byprescription is a question of fact. Rush v. Collins, 366 Ill.307, 8 N.E.2d 659 (1937). This court will not disturb such afinding unless it is against the manifest weight of the evidence.Smith v. Mervis, 38 Ill. App. 3d 731, 348 N.E.2d 463 (1976). Afinding is against the manifest weight of the evidence if, whenviewing the ruling in the light most favorable to the prevailingparty, an opposite conclusion is clearly evident. Schackleton v.Federal Signal Corp., 196 Ill. App. 3d 437, 554 N.E.2d 244(1989).

The circuit court's order indicates that the "[d]efendantshave failed to establish any affirmative defense" of prescriptiveeasement "or permissive use, as to the Plaintiffs and Plaintiffclass herein, such as would allow or justify their use of OldCatholic Cemetery property for the track of their irrigationsystem's wheels." The burden of proving a prescriptive right ison the party alleging such right (Illinois State Bank of Quincyv. Neece, 43 Ill. App. 3d 470, 357 N.E.2d 228 (1976); Waller v.Hildebrecht, 295 Ill. 116, 128 N.E. 807 (1920); Mueller v.Keller, 18 Ill. 2d 334, 164 N.E.2d 28 (1960)) and all elementsmust be distinctly and clearly proved. Monroe v. Shrake, 376Ill. 253, 33 N.E.2d 459 (1941); Deboe v. Flick, 172 Ill. App. 3d673, 526 N.E.2d 913 (1988). Where the property has been used inan open, uninterrupted, continuous and exclusive manner for therequired period, adversity will be presumed and the burden ofproof shifts to the party denying the prescriptive easement torebut the presumption. Sparling, 319 Ill. App. 3d 560. For aprescriptive easement to be created, the adverse, continuous,uninterrupted and exclusive use must endure for a period ofprescription, which is 20 years. Roller v. Logan Landfill, Inc.,16 Ill. App. 3d 1046, 307 N.E.2d 424 (1974).

Clearly, the defendants did not present evidence sufficientto satisfy the elements necessary to prove an easement byprescription. Most notably, defendants failed to satisfy thecontinuous use element necessary to claim a prescriptiveeasement. By their own admission, the current irrigation systemhas only been in existence since 1996. The previous irrigationsystem used a totally separate and distinct path from the one atissue in this litigation, which travels over Thomas Bogner'sancestors' graves. We refuse to hold, as the defendants request,that moving the path over which you trespass 17 years after thetrespass began and then beginning a new trespass over a totallydifferent path which aggrieves totally different partiesconstitutes continuous use. To satisfy the continuous useelement of a prescriptive easement, "the use must be confined toa definite and specific line of way." Thorworth v. Scheets, 269Ill. 573, 582, 110 N.E. 42, 46 (1915).

While we acknowledge that the Thorworth court found aneasement by prescription did exist, this was so in part becausethe path traveled did not even vary two feet during more thanthirty-five years. Thorworth v. Scheets, 269 Ill. at 582. Here,not only did the path vary 9 feet after 17 years, but by movingthat 9 feet, it encroached upon the property rights of totallydifferent parties. As such, the defendants cannot in any waysatisfy the continuous use element necessary to claim an easementby prescription. Accordingly, the circuit court correctly heldthey failed to establish their affirmative defense.

Plaintiffs Entitlement to Injunctive Relief

Defendants claim it was reversible error to grant theplaintiffs a permanent injunction forbidding the defendants fromoperating their irrigation system through the cemetery. Wedisagree.

A party seeking a permanent injunction must prove it has aclear and ascertainable right in need of protection, irreparableharm will result if injunctive relief is not granted, and noadequate remedy at law exists. Hasco, Inc. v. Roche, 299 Ill.App. 3d 118, 700 N.E.2d 768 (1998). Unless the trial courtabused its discretion and held contrary to the manifest weight ofthe evidence, a court of review will not set aside an injunction.Lubeznik v. HealthChicago, Inc., 268 Ill. App. 3d 953, 644 N.E.2d777 (1994).

Defendants assert that, when weighing the evidence, thetrial court did not give proper credit to the testimony ofMonsignor Stephen Rohlfs of the Roman Catholic Diocese of Peoria.Monsignor Rohlfs testified that operating an irrigation systemthrough the middle of a cemetery and across graves does notinterfere with the reverential character of the cemetery. Thetrial court was not only free but duty bound to weigh thistestimony in the light of other evidence offered by theplaintiffs, which indicated the irrigation system ran over anddamaged head stones, left muddy tracks in graves at least nineinches deep and did desecrate the graves. Clearly, the trialcourt found Monsignor Rohlfs' opinions wanting when it found:

"Defendants have caused and continue to causethe tandem wheels of their irrigationequipment to tread over the gravesites,headstones and adjunct cemetery grounds, tothe detriment of the physical integrity andsanctity thereof. *** This Court furtherfinds that Defendants, since purchasing saidland, and without prior authority, havedisposed of fencing, moved and disposed ofheadstones, and cut or removed trees oncemetery grounds, all for their ownconvenience and economic benefit, withoutreverence or consideration for the sacred andsentimental character of the cemetery or therights or sensitivities of those whoseancestors' remains are there interred."

The trial court further found that no practical alternativeor remedy at law was available to protect the integrity andsacred value of the cemetery. We agree.

The trial court correctly found that the plaintiffs had aclear and ascertainable right in need of protecting, thatirreparable harm would result should an injunction not issue andthat no adequate remedy existed at law.

CONCLUSION

When viewing the photos, testimony and record as a whole, itis clear that the defendants' actions desecrated the graves ofthe plaintiffs' ancestors. In light of the foregoing, we cannotsay the trial judge abused his discretion in ruling for theplaintiffs and therefore affirm the ruling below.

The ruling of the circuit court of Marshall County istherefore affirmed.

Affirmed.

LYTTON and SLATER, JJ., concur.