Shelby County – Did County Board Member Comments Turn Farm Ground Into A Cemetery?

Shelby Co., Ill. (ECWd) –

During the last Shelby County Board meeting, board member Carol Cole provided her input (video below) during the discussion regarding power poles being placed on the farm property, or is it cemetery property after her comments?

Her input resulted in the State’s Attorney including his concerns on the matter in his monthly update to the board which can be downloaded at this link.

Spread into the public record were the following statements:

County Board Member Carol Cole Stated:

“It’s my understanding people were buried along the fence row but don’t know where the fence row is at the farm”

“We don’t really know where they are”

 “I’m told when the weather was bad, and, this is 1867 to 1958 OK,  so when the weather was bad and they couldn’t get back to the cemetery, because you take the lane all the way back, it goes up to the cemetery, they couldn’t get back their the hearse couldn’t, they just buried them where ever they could “find a place?”.   It was a poor farm.”           

Mrs. Cole further stated, there are between 79 and 82 people buried out there.  Her full comments can be watched in the video below.

State’s Attorney Rob Hanlon commented in response to our inquiry that the legal analysis of the situation is that these uncontroverted facts spread into the public record by a Shelby County Board Member, a public official, is that there are human remains located about the farm property.  Because this now constitutes part of the public record, it serves as an encumbrance upon the title to the property unless and until proved to be otherwise.  Thus, until the human remains are located or scientific evidence produces adequate facts to support the continued use of the farm for commercial farming activity, the farm constitutes a grave site and likely does not have a merchantable title, making it unavailable for sale except as a cemetery.  This is because the only public record presently is that the entire parcel is presumed to have human remains.

When asked about harvesting the crop presently planted, Mr. Hanlon stated that additional research needed to be completed but he believed that the harvesting activity, by itself, was akin to other acceptable activity in a cemetery.  For instance, the mowing of grass in a cemetery is an acceptable means of respectfully treating the grounds over human remains.  He also said that his office would not consider the harvest as an act of desecration, but that the planting of a new crop would be construed as such an act.  He further commented that the statement of: ‘not everybody, this is between 1867 and 1958, when the weather was bad they just buried them wherever they pleased’, likely serves as an encumbrance to the title to the property.

He then concluded that his office would likely find it necessary to file a complaint with the Circuit Court to attain declaratory relief as to the proper treatment of the farm property, which would not have been necessary but for the current state of the facts spread into the public record as articulated by Mrs. Cole in the last Shelby County Board Meeting.  Because of the need to have the courts resolve this matter, the county will likely have to engage a third-party attorney.

We reached out to Mrs. Cole with the following questions and have not received any response at the time of publication.

During your comments, you stated it was your understanding people were buried along the fence row but you don’t know where the fence row is (was) at the farm.  How did you come to this “understanding”?  Is this understanding based on any facts or just hearsay?

You also claimed after being questioned by the Chairman on the location of these grave sites you said “we don’t know where they are”, referring to those buried at the farm.  What factual information do you have that points to any bodies being buried in any location other than the marked cemetery area?

You also claimed you were “told” when the weather was bad they just buried them where they could find a place since the hearse could not get back to the cemetery.  Who told you that and what facts do you or the person telling you this have to support such an assertion, or is this simply hearsay?  

If everything she said is nothing but speculation and hearsay, we would hope she acknowledges that as that would change the public record she established on the matter.

It appears graves sites and things related to such are heavily protected in Illinois, by not just one statute, but upwards of 10 different statutes which few may be aware of and may wish to read.  A list of those can be found on the DNR Historic Preservation Division website at this link.   We found the Title 17 Administration Code to be quite interesting, however so were other statutes we reviewed.

By all indications, it appears Mrs. Cole’s comments may well have established what was once an asset to the county may now be a long-term tax-exempt liability as a cemetery. Being tax-exempt would finally cure the problematic double taxation issues identified in the past, however, the maintenance and upkeep of a cemetery are not cheap and will be a liability to the county for as long as they own the property, which more than likely would be forever as there are not too many cemetery sales here in the Midwest.

Short of Cole recanting her statements, it appears the county board needs to take appropriate steps to identify each grave site and ensure appropriate steps are taken to protect those locations rather than ignoring them as has been done for over 100 years.  Short of that they may find themselves on the receiving end of a declaratory relief action.

Cole stated she believes the University of Illinois has the technology to identify grave sites.  If that is true, it would seem a simple Intergovernmental Agreement could be arranged between the county and the U of I for them to examine the entire farm ground with the appropriate technology so that a proper record can be established pertaining to where people are buried.