272 Ill. 622 | Ill. | 1916
delivered the opinion of the court:
Appellant filed a bill of complaint in the circuit court of Cook county November 2, 1915, to enjoin appellee from erecting an apartment building in violation of a building line agreement hereinafter shown. On a hearing the prayer for relief was deniéd and decree entered dismissing the bill for want of equity. This appeal was perfected from that decree.
From the oral testimony and stipulation of facts found in the record it appears that appellee was the owner of certain premises legally described therein, being a lot having fifty feet east frontage on South Shore drive, (formerly Yates avenue,) in the city of Chicago. Appellant owned one hundred feet frontage on the same (west) side of South Shore drive, in the same block. Lambert C. Wieland, the original owner of the entire east frontage of said block between Sixty-ninth and Seventieth streets, before selling and conveying any of this property, executed in 1910, and recorded in the recorder’s office of Cook county in 1911, an instrument in writing, in which he provided, among other things, that no building should be erected on said premises, or any part thereof, for twenty-five years, to be used for business or factory purposes, and that no building erected thereon during said period should be built “nearer than thirty-five feet to the front or east line of said premises, [being the west line of Yates avenue,] bay windows, porches and steps excepted.” The instrument further provided that these restrictions should be inserted in every deed of conveyance made by said Wieland and should be considered as covenants running with the land. The restrictions were inserted in the deed from Wieland to appellant and in the deed from William K. Young (who was a grantee of Wieland) to appellee. It is not contended that these building liné restrictions are not binding on appellee. The only question is whether he has violated them in the building that he is constructing.
The facts with reference to appellee’s apartment building, so far as they throw any light on the building restrictions here in question, are substantially as follows: The walls of said building are to be constructed of brick, stone and cement. The east line of the main part of the building is three inches west of said building line, (located thirty-five feet west of the west line of Yates avenue or South Shore drive,) at the northeast corner of said building, and the east or front wall extends from the northeast corner of the building, south, nine feet ten inches. From this last point a substantial brick wall, with a cement foundation and stone water-table, extends east nine feet three and one-half inches; thence at right angles, south, seventeen feet eleven inches; thence at right angles, west, three feet eight inches; thence south nine feet one and three-eighths inches; thence at right angles, west, five feet seven and three-fourths inches; thence south, parallel to South Shore drive, nine inches, which last mentioned line is slightly west of the thirty-five-foot building line. In other words, this wall follows the lines of a structure which projects to the east in front of all but the north nine feet ten inches and the south nine inches of the main building, and which structure would be about nine feet three and one-half inches wide from east to west, except that there is what might be termed a rectangular indentation in the southeast corner, making the south portion of the structure narrower from east to west than the north portion. In front of that part of the projection which is five feet seven and .three-fourths inches wide is located the front door or entrance into the apartment building. The walls of all parts of the projection which extend east of the building line are built of the same material and of substantially the same thickness as are the main walls of the building which lie west of the building line. The walls of the said projection extend ten feet two inches above the level of the sidewalk on South Shore drive. The north wall of the projection contains one window slightly west of the center, with a substantial window frame and heavy stone trimmings surrounding its upper three-fourths. The window contains a heavy and substantial stone window sill. In the east or front wall of said projection there are two windows similar in all respects to said north window. The south wall of the projection east of the building line is of solid brick and stone, without any openings. The only water-table in front of the building is situated about the level of the sidewalk on South Shore drive and is continuous around the entire front of the building. On the inside of the doorway or entrance is a solid and substantial brick wall, extending from a point west of the building line, in an easterly direction, to the extreme easterly part of the projection,—that is, to a point twenty-five feet eleven and five-eighths inches west of the east line of said lot, or west line of South Shore drive. Said brick wall is built to the full height of the first story or so-called basement of the building. The last mentioned brick wall, extending east and west on the inside of the building, separates the entrance or hallway leading into the building from that part of the interior of the building north of the entrance. The interior of the building north of the east and west walls, as the same is designed to be constructed) is to be included in a room or rooms, and, under the present plan, unplastered, extending from the front or east wall of the projection to a point west of the building line and connecting with other rooms in the first floor or so-called basement of said apartment building. Provision is made in the plans and in the structure thus far erected for gas or electrict light fixtures in this front room from a point in the ceiling near the building line, intended to furnish artificial light to this room and that part of the first story or so-called basement. The main east wall of the building is designed to be carried upon a heavy steel beam from that point to the roof- of the building, and it is planned to construct porches for each story immediately above the solid brick walls of that part of the projection north of the doorway above mentioned, which is to afford an entrance into the building. These porches are to be supported by brick columns at each of the corners, but the porches do not extend over that part of the projection which is planned to be the entrance to the building, the porches to be separated from the main building' by what are commonly called French doors, opening into the main part of the building on each floor. The roof of the first story or basement is intended to serve as a floor for the porch of the next floor or the story above, and so on with each of the floors, it being intended that the roof of the building shall be extended so as to form a roof over the upper one of said porches. The spaces between the piers to be built at the corners of the porches are intended to remain open and free from any obstruction, except that in summer screens will be placed in said openings. No steps were to be built at the front of the building. The only steps or stairs leading from the street level to the floors above the first story or so-called basement are situated on the inside of the building and located twenty-three feet west of said doorway or front entrance. This doorway in the front wall of this entrance will be the only front entrance to the building. The building is to be constructed to have three stories above the so-called basement or first story. At the time of this hearing the main outside walls of the building and of this projection over the building, line had been constructed to practically the full height of the first story or so-called basement. Photographic exhibits and blue-prints in the record show very clearly" the facts just stated.
On this state of facts, about which there is practically no controversy, it is clear that the so-called basement extends about ten feet east of the building line, being constructed of the same material as the rest of the main part of the building; that the water-table on the main front follows around the projection and the so-called vestibule; that the entire front and the water-table are uniform, so far as the manner of their construction is concerned; that the walls of this projection are not divided from the walls of the rest of the building at the building line or at any other point; that the front part of the basement, extending to the east wall of the projection, is a part of the basement of the entire building; that the wall of this projection, up •to the joists where the so-called first floor porch is intended to rest, is of the same material as the main front walls of the building and contains three windows,—two in the east or front wall and one in the north wall; that the walls are built of masonry consisting of brick, and are one story high, the front being finished in pressed brick, the same as the entire front of the building, and having no opening (except said windows) other than the door, which is the only front entrance into the building; that this vestibule extends back into the reception hall; that a heavy brick wall also extends from the inside of the east wall of the projection westward a distance of something like eighteen feet, forming the north side of the vestibule and reception hall; that the stairway leads to the upper floors in said building at the west end of this reception hall, and from said hall a door opens through a heavy brick wall at the north into the first story of the building. Obviously, from these facts, the purpose of the so-called foundation for porches is to enlarge the area of the apartments of the first story or so-called basement, and the whole plan of the building indicates that this is the clear purpose, though this foundation also serves as a support for the porches of the three upper stories.
Many authorities are cited with reference to building line restrictions, to which we do not deem it necessary to refer because the building line restrictions in those cases did not have a proviso, such as in the restrictions here, that porches, bay windows or steps might be built within the reserved space. This court laid down this same rule as to that class of cases in Keith v. Goldsmith, 194 Ill. 488, where there was a similar exception as to porches and bay windows as is found here. However, as this court has stated, each case necessarily must depend upon and be decided largely on its own special facts. (O’Gallagher v. Lockhart, 263 Ill. 489.) This case must be decided from the intention of the parties as to the meaning of the words “bay windows, porches and steps,” as used in the exception. This intention is to be ascertained, as in other cases, from the wording of the instrument containing the restriction itself, considered in connection with the circumstances existing at the time it was executed. (Hays v. St. Paul Methodist Church, 196 Ill. 633; Druecker v. McLaughlin, 235 id. 367.) Numerous definitions are quoted from standard authorities by counsel in their briefs as to the meaning of the word “porch.” While some lexicographers state that a porch is an entrance or appendage to a building and may be enclosed or unenclosed, and sometimes it is spoken of as an entranceway or vestibule, the popular understanding of a porch and definition of the same, especially as used and applied in this country, is that it is a veranda, portico or open passageway or open appendage attached to the enclosed part of the building. The so-called porch may in some cases be enclosed, yet if, from all the evidence, it appears that the projection is a part of the main building, even though it is called a porch, it will be considered a violation of the building restrictions such as we are here considering. “No part of the main mass of a building may properly be called a porch.” (Hieronimus v. Moran, ante, p. 254.) We have held that swell fronts or bay windows which extend over the established building line and which run up the whole height of the building from the basement to the roof, and are on a continuous foundation with the building, with continuous walls of the same material, are substantial parts of the building. ( Curtis v. Rubin, 244 Ill. 88; O’Gallagher v. Lockhart, supra.) Building restrictions which interfere with the free use of property are not favored in law and doubts are generally resolved against them. (Hutchinson v. Ulrich, 145 Ill. 336; Eckhart v. Irons, 128 id. 568.) It is not necessary, however, in order to justify the interposition of a court of chancery, that the easement claimed be absolutely necessary for the enjoyment of the estate granted. It is sufficient if it is a benefit. (Smith v. Young, 160 Ill. 163; Newell v. Sass, 142 id. 104.) A general scheme or plan in the sale of lots, embodied in the deed to every purchaser, even though there be no further benefit stated than that which is necessarily implied, of uniformity, will be enforced in equity. ( Wiegman v. Kusel, 270 Ill. 520.) A restriction fixing a building line as a part of a general plan for the benefit of all lots in a particular locality gives to the purchasers of the lots a right in the nature of an easement which will be enforced in equity, and, upon equitable principles, against the grantee of any particular lot. (Curtis v. Rubin, supra.) Restrictions that are reasonable and not contrary to public policy or some positive rule of law will be enforced in equity. Turney v. Shriver, 269 Ill. 164.
Two architects, each having had long experience, testified, one for appellant and one for appellee, as to whether the parts of the building extending beyond the building line here could properly be designated as porches. Andrew Sandegren, for appellee, stated that he had had twenty-seven years’ experience in Chicago, New York and Boston and had drawn many plans for apartment buildings; that he examined these plans and that he would call the lower part underneath the porches foundations to the porch; that porches with solid foundations of that character had been built in Chicago for years; that the. covered vestibule or entranceway would come within the definition of a porch. He stated further, however, if he were asked to draw a plan for a porch without any other.instructions than the use of the word “porch” he would understand that he was to draw a plan for an open porch; that if the walls of this projection extended as high as the top of the story above the first or basement floor he would consider it a part of the building, but that if it only extended up to the first story window sills above this first story or basement he would consider it a foundation for the porch. John T. Hetherington, an architect, testified for appellant that he had designed many apartment buildings and was familiar with the plans for this building; that the foundation of a porch consisted usually of piers underneath and columns supporting the roof; that the entrance or vestibule or hallway was not commonly understood to be what is called a bay window, porch or steps; that he did not consider the. walls of this projection the foundation for what would generally be understood to be a porch.
While the roof of the projection here in question forms a floor for a porch above, the admitted facts in this record show clearly that the first floor of this projection, called by counsel for appellee a basement, had all the characteristics of a room or substantial part of the apartment. The three windows furnished a light to this room, and if it were planned to build the first story of an apartment building the floor of which should be on the same level as the side-' walk, the outer walls of such first story would differ very little, if any, from the outer walls of this projection. The vestibule or entrance of the building at the southeast corner was also of the same substantial character as the rest of the building. In view of its construction, as shown in the description already given, we do not see how it could be called a porch. The porches above this first floor over the projection do not extend over the entrance or vestibule. The establishment of building line restrictions creates an easement for unobstructed air, light and vision for the benefit of the owners whose property is within the area of the building restrictions. (O’Gallagher v. Lockhart, supra; Hartman v. Wells, 257 Ill. 167; Simpson v. Mikkelsen, 196 id. 575.) The projection here in question enlarged the area of the basement, and while the room so made by it may be denominated a basement room, it is clearly an integral part of the building as is the entranceway or vestibule. The front walls are continuous from the basement up, extending practically a full story in height. Whether it be called a basement or first floor does not change its substantial character. What would be the practical purpose of building restrictions, even though they contained exceptions such as here exist, if there were to be no distinction between the porches or other projections and the foundation of the main building? The purpose of establishing this restriction would be defeated if the owners of lots should be permitted to erect such structures beyond the building line as that which appellee has planned to erect upon this lot. So far as unobstructed light, air and vision should be taken into account, this is as much a violation of the building restriction to the height of substantially one story of the building as it would be for that story if the front of the building extended to its entire height on the eastern wall of the projection. The authorities in this as well as in other jurisdictions are practically a unit in holding that appendages or constructions of any nature which will practically frustrate the intention of the parties to the building restriction will not be permitted. See, among others, Bagnall v. Davies, 140 Mass. 76; Attorney General v. Algonquin Club, 153 id. 447; Ogontz Land Co. v. Johnson, 168 Pa. St. 178; Righter v. Winters, 68 N. J. Eq. 252; Supplee v. Cohen, 81 id. 500; Alderson v. Cutting, 163 Cal. 503.
The appellee herein went to the husband of appellant to secure a waiver of the building restrictions so far as appellant was concerned. This tends strongly to show that the popular definition as to porches as given herein was the definition and understanding of that word that the appellee had in mind before beginning the construction of this building. Appellant refused to give this waiver. Appellee therefore had notice that no violation of the building restrictions would be tolerated.
Under the reasoning of the decisions of this court in the cases already cited, that part of the building here in question, including the entrance or vestibule and all of the projection which extends beyond the building line, was a violation of the building line restriction.
The decree of the circuit court must therefore be reversed and the cause remanded to that court, with directions to enter a decree in accordance with the conclusions reached in this opinion, requiring appellee to remove that part of the structure extending over the building line or to so modify it as to make it come within the exceptions of said restrictions.
Reversed and remanded, with directions.
