Daily Development for Wednesday January 28, 2004 
by: Patrick A. Randolph, Jr. 
Elmer F. Pierson Professor of Law 
UMKC School of Law 
Of Counsel: Blackwell Sanders Peper Martin 
Kansas City, Missouri 
dirt@umkc.edu 
EASEMENTS; SCOPE; CEMETERY RIGHTS: The descendants of individuals whose remains are buried in land may be entitled to an injunction 
preventing the owner from defacing or interfering with the reverential character of the graves.  Bogner v. Villiger, 796 N.E. 2d 679 (Ill. App. 3 Dist. 2003). 
In 1843, burials commenced in a .4 acre parcel known as the Old Catholic Cemetery in Marshall County. The Roman Catholic Diocese of Peoria assumed ownership
 of the Cemetery in 1847. Today the property holds approximately 112 graves. Defendants purchased approximately 170 acres of unirrigated farmland containing the
 Cemetery in 1974, and in 1979, installed an irrigation system. The irrigation pipe was suspended above the ground and traversed the cemetery by means of tandem wheels. 
In 1996, defendants purchased a new elevated irrigation system, also mounted on tandem wheels, the path of which paralleled the old system nine feet to the east. Both 
systems traveled over graves and headstones. The newer system traversed the graves of different people, however, and it was the descendants of those persons who 
brought the instant suit. Plaintiff Bogner first complained about damage caused by the 1996 system in 1997 and formally complained to the Diocese in 1999. The suit
 was brought in 2001.
	In Illinois, relatives of those buried in cemeteries acquire an easement of indefinite duration to enter on the cemetery and care for the graves. Despite the testimony 
of one Monsignor Stephen Rohlfs of the Diocese that operating an irrigation system through the middle of a cemetery and across graves did not interfere with the reverential
 character of the cemetery, the trial court found that "Defendants, since purchasing [the] land, and without prior authority, have disposed of fencing, moved and disposed of 
headstones, and cut or removed trees on cemetery grounds, all for their own convenience and economic benefit, without reverence or consideration for the sacred and
 sentimental character of the cemetery or the rights or sensitivities of those whose ancestors' remains are there interred."
	The evidence admitted showed that the irrigation system "ran over and damaged headstones [and] left muddy tracks in graves at least nine inches deep." The appeals
 court upheld the permanent injunction granted by the trial court.  The court affirmed the trial court's striking of the affirmative defense of laches and upheld the finding that
 an easement by prescription for the irrigation system did not exist because the 1974 system was in place for seventeen years, three years short of the prescriptive period, and 
the 1996 system "encroached upon the property rights of totally different parties."
Comment 1: The editor believes that there is an implied easement of the type described here in Missouri. A check with the leading treatise on easements, Bruce and Ely, the
 Law of Easements, led to no direct discussion of this kind of easement, except as associated with the ownership of a cemetery plot. But the authors note cases discussing a 
Florida statute creating such an easement (Mallock v. Southern Memorial Park, Inc., 561 So. 2d 330 (Fla. App. 1990) and a case discussing abandonment of such an easement 
in Massachuset, Sanford v. Vinal, 552 NE2d 579 (Mass. App. 1990).
Comment 2:Unfortunately, the case tells us virtually nothing about the scope of the easements in question. In fact, are the descendants entitled to have the gravesite completely
 undisturbed, right down to a prohibition against removing trees? What about bushes? What about "volunteer" trees that grew up subsequent to the burial?
To what extent does the servient owner have to protect to condition of the graves? If nine inch deep ruts are not acceptable, what about tire marks on the surface of grass?
 Does the servient owner have to protect the overall appearance of the gravesite? Can it park its trucks and tractors within view of the gravesite?