180 N.E. 811 | Ill. | 1932
Lead Opinion
George A. Jennings filed a bill in the superior court of Cook county to restrain Joseph J. McCarthy and the Calumet National Bank, trustee, from installing and operating a certain gasoline tank to be used as part of and in connection with a gasoline filling station on the premises known as the southwest corner of East Seventy-ninth street and Jeffery avenue, Chicago. Defendants filed answers and the cause was referred to a master, who recommended that the bill be dismissed for want of equity. The trial court sustained certain exceptions to the master's report and entered a decree granting the relief prayed. This decree was affirmed by the Appellate Court for the First District, and the cause is here on certiorari.
East Seventy-ninth street runs east and west and Jeffery avenue runs north and south. The plaintiff in error bank owns lots 1, 2, 3 and 4 on the southwest corner of the intersection. Lot I fronts on both of said streets and the other lots lie in numerical order to the west and front on East Seventy-ninth street. Their length is 110 feet. Lot 1 is 33.6 feet wide and lots 2, 3 and 4 are 25 feet in width. Plaintiff in error McCarthy leased said lots from the bank and on August 22, 1928, made application to the city of Chicago to install a tank to contain 1000 gallons of gasoline, *110 the premises upon which it was proposed to make such installation being spoken of in the application by street number, as "rear 1951 East Seventy-ninth street" and designated as the west 24 feet of the south 25 feet of lot 4. On the northeast corner of the street intersection lies property owned by the Catholic Bishop of Chicago and occupied by Our Lady of Peace parish. The distance from this property to the northeast corner of lot 4 is 163.51 feet. The distance from this property to the northeast corner of the area designated as the west 24 feet of the south 25 feet of lot 4 is 213.29 feet. The portion of lot 4 thus designated is 151 feet from the north line of East Seventy-ninth street, 150.6 feet from the east line of Jeffery avenue and 158.6 feet from the east line of Euclid avenue, the first north and south street west of Jeffery avenue. A distance of 150 feet from the boundaries of lot 4 itself would extend 94 feet beyond the north line of East Seventy-ninth street and six inches beyond the east line of Jeffery avenue. The property owned by defendant in error fronts on Euclid avenue. It is distant 67.5 feet from the southwest corner of lot 4 and is occupied by him as a residence.
The bill is based fundamentally on the theory of a violation of section 2279 of the municipal code of Chicago, which provides: "It shall be unlawful to install any tank or tanks for the storage of any of the liquids mentioned in section 2277 in any lot or plot of ground without first obtaining the written consents of the property owners representing the majority of the total frontage in feet of any lot or plot of ground lying wholly or in part within lines 150 feet distant from and parallel to the boundaries of the lot or plot of ground upon which said tank or tanks is or are to be installed; provided, however, that for the purpose of this ordinance only the frontage of any such lot or plot of ground or that part of the frontage of any part or [of] such lot or plot of ground as comes within the 150-foot limit herein prescribed shall be considered; and further provided, *111 that any and all petitions containing such consents of property owners shall be based on and contain the legal description of the property affected. No such tank or tanks shall be installed in any lot or plot of ground where any of the boundaries of any such lot or plot of ground are within 200 feet of the nearest boundary of any lot or plot of ground used for a school, hospital, church or theater. These provisions shall not be applicable to the installation of a tank or tanks containing any of the oils referred to in section 2277 when such oils are to be used in connection with garages or manufacturing plants where such oils are incidental to the business conducted or oils used for fuel purposes; provided further, that for the purposes of this ordinance, whenever the lot or plot of ground in which such tank or tanks is or are to be installed is in any shape other than a rectangle, the 150-foot limiting line aforementioned shall not exceed in distance 150 feet from any point in the boundaries of such lot or plot of ground." The main issue presented is whether or not under this ordinance plaintiffs in error can insist that the measurements upon which necessary frontage consents and distances to schools, hospitals, churches or theatres are based must be made from the boundaries of the small area of lot 4 designated on the application for permit.
In arguing the intention of the ordinance to be that computation of the distances referred to therein is to be made from the boundaries of the 24 by 25 area thus designated, plaintiffs in error stress the fact that the ordinance uses the language "lot or plot of ground," and they refer to a definition of a "plot" in Webster's International Dictionary as a "small or not large area of ground" as sustaining their contention that the city council in using the term had in mind and meant to designate an area such as they referred to in their application.
In Standard Oil Co. v. Kamradt,
We are not in accord with the contention of plaintiffs in error as to the construction of the ordinance. It is clearly within the police power of the city to provide by ordinance *113
for the regulation and prevention of the storage of coal oil, naphtha, benzine, petroleum or any of the products thereof and other combustible or explosive material. (Klever KarpetKleaners v. City of Chicago,
We cannot hold that the applicability of the ordinance restrictions was intended to hinge upon the number of inches or feet of lot 4 that the owners saw fit to designate in the application as constituting the immediate repository for the tank, and especially is this clear where the contents of the tank to be installed are, as in the present case, to be employed as the basis for a business to be conducted upon the remainder of the lot.
Plaintiffs in error insist that unless their contention as to the construction of the ordinance is accepted it must be declared to be unconstitutional. They argue that unless the basis for measurement here be the area which they designated, and that unless lot owners in applying for permits can designate such small portions of their holdings as they choose, the ordinance becomes unreasonable and owners of larger lots are discriminated against. They cite in support of their argument People v. Village of Oak Park,
Plaintiffs in error contend that conceding their construction of the ordinance to be unwarranted, there was no violation of its provisions so far as the church property was concerned. The master found that the premises at the northeast corner of East Seventy-ninth street and Jeffery avenue were used for a church within the meaning of the ordinance. This finding is challenged on the ground that the structure on the northeast corner lot fronting on East Seventy-ninth street and Jeffery avenue is a rectory, and that the church building itself is on another lot over 200 feet from the northeast corner of lot 4. The church property consists of seven adjoining lots. In the record is a photograph showing the premises. It discloses a group of buildings apparently connected with each other, and along the *116
south side appears an ornamental iron fence. The testimony indicates that while the structure on the corner lot is used as a rectory, other buildings in the area are used as a church, school and convent. In support of their position plaintiffs in error cite First Congregational Church v. Board of Review,
Plaintiffs in error contend, nevertheless, that the tank was not a nuisance; that defendant in error cannot maintain his bill without proving that he suffered special damage from its installation, and that the evidence does not warrant the finding of the chancellor that such special damage was sustained. There is at least some question as to whether, under the circumstances of this case, defendant in error is bound to establish by any other evidence than the ordinance itself that he has suffered special damage. In Griswold v. Brega,
Regardless of the question as to whether breach of the ordinance in itself can be said to inflict special damage upon defendant in error, we are of the opinion that the finding that such damage would result is well warranted by the evidence. Four real estate men who were familiar with the neighborhood and had dealt in property there, testified that the conduct of a filling station on the southwest corner of *118 East Seventy-ninth street and Jeffery avenue would depreciate the value of the property of defendant in error from five to twenty per cent, basing their opinions on the elements of added noise, fire and explosion hazards, glare from headlights and the presence in the air of fumes.
Plaintiffs in error argue that this testimony has no place in the record because it takes into account the proposed filling station and is not based upon the presence of the tank, alone. With this argument we cannot concur. In view of the language of the ordinance itself that "these provisions shall not be applicable to the installation of a tank or tanks * * * when such oils are to be used in connection with garages," etc., it seems apparent that its application to a given case is dependent upon the use to be made of the contents of the proposed tank. On the original application made for a permit to install the tank it was stated that it was to be used to store gasoline to be re-sold from a filling station to which it would be pumped. Such frontage consents as were obtained were sought for the installation of a tank for the "sale or storage" of inflammable liquids. The permit issued bears a notation that the tank is to be used for a filling station. Without question it is proposed to employ the tank as the foundation for operations shown to inflict special injury upon defendant in error. The chancellor cannot be asked to so far disregard the substance of things that he must base his conclusion upon what is, in effect, an abstraction. The issue before him was not whether plaintiffs in error might bury a tank in the ground and fill it with gasoline. It was rather whether they might use such tank as the basic part of a business of purveying inflammable liquids to the public. Standard Oil Co. v. Kamradt,supra.
Plaintiffs in error argue that defendant in error was guilty of laches and that great hardship will result to them unless the bill is dismissed. The argument is based largely upon certain obligations incurred for architect's fees and *119 under a contract let to build the filling station. Installation of the tank was commenced late in the afternoon of November 3, 1928. On November 6 thereafter counsel for defendant in error served a written notice upon plaintiff in error McCarthy in the form of a registered letter. Among other things the letter stated: "You are further notified that on behalf of such clients we will take all steps necessary and proper to prevent the construction of such a tank or filling station upon the property in question contrary to the ordinances of the city of Chicago. We give you this notice so you may not expend any time, money or effort in such construction." It does not appear that any work was done on the property after the tank was installed until the first week in February thereafter, when a contractor who on January 26 had signed the contract to build the filling station began to fill in the lots. The bill was filed February 11 thereafter. No physical move being made on the property after the notice of November 6 was given, it might well be said that defendant in error was as much warranted in the belief that the warning was being heeded as plaintiffs in error were in the idea that such opposition as there might have been had been abandoned. Within a few days after a further open move was made the bill was filed. We would not be warranted in holding that defendant in error is barred by laches.
By the decree plaintiffs in error are perpetually restrained from using the tank for the storage of gasoline to be used in connection with the filling station proposed to be operated upon lots 1, 2, 3 and 4. It is insisted that this relief is too broad and that the decree does not take into account the possibility that plaintiffs in error through compliance with the ordinance might qualify themselves to operate the filling station. Under the evidence disclosed by the record plaintiffs in error do not have a right to maintain the tank in connection with the business proposed. A decree restraining them from so doing is proper and is not *120 out of order in not attempting to anticipate contingencies not founded on the evidence and which might never occur. The judgment of the Appellate Court is affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Judgment affirmed.