159 Ill. 518 | Ill. | 1896
delivered the opinion of the court:
Walter S. Dray, who owned a tract of land in Chicago consisting of five acres, laid it off into thirty-eight lots, nineteen on each side of that part of Rhodes avenue lying between Seventy-second and Seventy-third streets. He surveyed and platted the property. The plat was acknowledged as required by law, and recorded in the recorder’s office of Cook county. It shows the size of the various lots, the streets upon which they are located, and the dimensions and numbers of the respective lots, but it contains nothing showing, or tending to show, an intention on the part of the proprietor of the subdivision to impose any condition or restriction whatever upon purchasers in reference to the mode or manner in which they should erect buildings on or use or improve the respective lots which might be purchased. No deed executed by the proprietor of the subdivision contained any covenant on his part that on the sale of any of the lots embraced in the subdivision he would impose any restrictions on purchasers in regard to buildings to be erected by purchasers on the lots, nor does it appear that the proprietor ever entered into any contract under which he obligated himself to impose any restrictions on purchasers.
As will be seen from the following plat, the defendant’s premises adjoin the lot owned by the complainant on the south. The south half of lot 36 and all of lot 35 lie directly south of the south line of complainant’s lot, as indicated by the plat:
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As has been seen, the deed from Dray, under which McGee obtained title to the premises occupied by him, contained a provision that no house should be erected upon a less portion of the premises than a frontage of 45 feet, and that no house should be erected upon the premises at a less cost than $2000 and be built less than 25 feet back from the front line of said premises, and the question presented by this record is, whether the adjoining lot owner, Clark, can maintain a bill to prevent the erection of a building contrary to the provision of the deed.
We think it well settled by the authorities that when the owner of two adjoining lots conveys one, and incorporates into the deed of the lot conveyed a covenant restricting the right of the grantee to build in a certain specified manner, which covenant is intended for the benefit of the other lot held by the grantor, a subsequent conveyance of the lot retained will pass or transfer the covenant to the grantee or grantees of such lot as an easement for the benefit of the lot, and the grantee may enforce the covenant against the owner of the other lot in an appropriate action. (Coughlin v. Barker, 46 Mo. App. 61, and cases there cited; Hutchinson v. Ulrich, 145 Ill. 336.) The law is also well settled, “where a tract of land is subdivided into lots, and these lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchase, and to give to each pilrchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right, in the nature of an easement or incorporeal hereditament, in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee.” Sharp v. Ropes, 110 Mass. 385.
It is claimed in this case, as we understand the argument, that the complainant is entitled to relief on the ground that Dray, the original proprietor of the tract of land, laid it off into thirty-eight lots, and adopted a general scheme or plan under which all the lots conveyed were to be subject to certain restrictions, which restrictions were intended for the benefit of the several lot owners. We do not concur in this view. There is nothing in the record to show that the restrictions placed in the deed to the defendant were part of a general plan adopted by Dray,' the proprietoi, for the benefit of the lots embraced in his Cottage Grove addition to Park Manor. In the conveyance of the lots by Dray no two of the deeds executed by him contained the same restrictions. They were somewhat similar, but not the same. Moreover, two or three of the lots conveyed contained no restrictions whatever. The absence of the building restrictions from several of the deeds executed by Dray, as well as the variance in the terms and conditions of the restrictions embraced in the other deeds, destroyed the -uniformity essential to establish a general plan. See Dana v. Wentworth, 111 Mass. 293; Sharp v. Ropes, supra; Jewell v. Lee, 14 Allen, 145; Badger v. Boardman, 16 Gray, 559; Coughlin v. Barker, supra.
The complainant has cited several cases in support of his position, but they do not, in our judgment, sustain him. The leading case relied upon is Parker v. Nightingale, 6 Allen, 341. In that case a bill interposed by a lot owner was sustained, but upon an examination of the case it will be found that a uniform plan was adopted under which all the lots should be conveyed, and that in pursuance of this general plan the deeds of all the lots contained the restrictions adopted, and in all subsequent conveyances the restrictions were repeated or referred to. We find no fault with the law as laid down in that case. Under the facts the law was properly declared, but the rule there adopted cannot be invoked under the facts of this case.
Sanborn v. Rice, 129 Mass. 387, is also cited, but upon looking into that case it will be found that the deeds of all the lots contained the same restriction.
Child v. Douglas, 2 Jur. (N. S.) 950, is also cited in the brief. It is there, among other things, said: “The law deducible from these principles and the authorities applicable to this case is, that where there is a general scheme or plan adopted and made public by the owner of a tract for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of a plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme and the covenant has been part of the subject matter of his purchase.”
Had a general plan or scheme been adopted in this case by the proprietor of the addition and uniformly adhered to in the conveyance of the lots, complainant might be entitled to maintain a bill. But such was not the case.
The judgment of the circuit court will be affirmed.
Judgment affirmed.