Court takes up case of cemetery, center pivot

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By LORI PILGER / Lincoln Journal Star

A lot of people tell Jim Egley they don’t understand why the Granville Cemetery Association has a problem with a center pivot sweeping over the edge of a cemetery on Calvin and Barbara Sjuts’ farmland near Humphrey.

“They see it as a giant water sprinkler doing no damage,” said Egley, the Sjuts’ attorney.

But Brian Beckner, the attorney who represents the association, said he’s heard from people who think the association is right to make the center pivot an issue.

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Calvin and Steve Sjuts of Humphrey appealed a judge's order that prohibits them from running their center pivot irrigation system over the Granville Cemetery.

Calvin and Steve Sjuts of Humphrey appealed a judge's order that prohibits them from running their center pivot irrigation system over the Granville Cemetery.

After all, no one envisioned in the late 1800s there would be pivots crossing their loved ones’ graves — including that of a Civil War veteran — one day, he said.

A case argued in front of the Nebraska Supreme Court on Friday should end a five-year debate that has pit farmer against pioneer cemetery.

And at least one other cemetery association is waiting to see what happens, Beckner said.

The Sjuts appealed a Platte County judge’s 2004 order stopping something they’d done for nearly 30 years: running their center pivot irrigation system over the cemetery.

“Would you want this on your mom’s cemetery?” Beckner asked Egley, sitting in a waiting room just outside the Supreme Court, minutes after they argued the case and answered the judges’ questions.

The high court has taken the case under advisement.

Considering the number of country cemeteries in Nebraska and the lack of case law on the subject, both attorneys said it’s likely to be a highly read decision.

At the core of the case is whether a cemetery association is like a public or private entity when it comes to easements, in particular the kind acquired after using someone else’s land, uninterrupted, for 10 years.

Beckner argued cemetery associations were, like public entities, exempt from what’s known in courts as adverse possession.

Egley argued they weren’t. Had lawmakers intended to exempt them they could have put them in state statute, he argued.

The Sjuts bought the 160 acres of farmland around the one-acre cemetery in 1974 and have run irrigation on it since 1977.

While the cemetery association kept title to the cemetery land, the Sjuts are now asking for the right to irrigate on the property’s edge as no one has asked them to stop irrigating there sooner.

Two wheels of the irrigation system cross the cemetery’s edge but don’t go over any marked graves.

The Granville Cemetery contains stone markers — the latest dated Aug. 16, 1896 — for 17 people, Beckner said.

The cemetery association thinks some 20 others are buried there, too, he said, based on depressions in the land.

Relatives moved away, and the abandoned cemetery sat, no one maintaining it until five years ago, Egley said.

The Sjuts held title to the 160 acres and paid taxes on it, thinking they owned the cemetery land as well, he said. They later learned the association retained title to the one-acre cemetery plot.

In 2003, they asked a Platte County District Court judge to establish the easement so they could operate the center pivot.

The court took the association’s side, and the Sjuts appealed, which is where the parties found themselves Friday.

Beckner and Egley said there just aren’t many cases dealing with cemetery associations.

In his brief, Egley cited a 1894 case finding a Bohemian cemetery association to be a private corporation. Beckner cited a 1921 case distinguishing cemeteries as consecrated land to be protected.

For now, they’ll all have to wait a little longer — the Sjuts and the Granville Cemetery Association — to see what the court decides.

Egley said in the meantime the Sjuts have taken on a less efficient watering system, irrigating up to the cemetery and stopping.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.