154 Ill. App. 375 | Ill. App. Ct. | 1910
delivered the opinion of the court.
The evidence shows that Burrows caused or permitted, the sewer to be obstructed as charged in the bill and that such obstructions caused foul odors to arise therefrom; that the sewer was in full view of Mc-Dougall’s house, which was near, and that he was disturbed in the enjoyment of his home by reason of the obstructions.
Counsel for appellants argue at length that the clause in question in the deed is not a negative restrictive covenant, but that it is a condition subsequent, and as such, a bill in chancery will not lie to prevent the grantee from failing to comply with its terms, and say that this is their only contention on this appeal. This distinction is not important here as appellee is not seeking to declare a forfeiture or attempting to reenter and take possession of the land on account of the violation of the terms of the deed. The main question presented by this record is whether or not the Burrows deed contained such an agreement that he and those holding under him were bound to refrain from obstructing the sewer. A full and exhaustive review of the authorities sustaining the right to an injunction in cases involving the same principle as that at bar is contained in Frye v. Partridge, 82 Ill. 267, and the court there said: “We are aware of no restriction upon the right of an owner to convey upon such terms and conditions as he may see proper, and as may be acceptable to the grantee, except that the right should be exercised with proper regard to public policy, and that the conveyance should not be made in restraint of trade. When a vendee purchases with full notice of a valid agreement between his vendor and the original owner, concerning the manner in which the property is to be occupied, it is but a reasonable and equitable requirement to hold him bound to abide by the contract under which the land was conveyed.” We think the deed shown by the record to have been ac-, cepted by Burrows contains an agreement binding him and those holding under him to refrain from obstructing the sewer, and that it was not contrary to public policy or in restraint of trade, and was sufficient to warrant a court of equity in restraining him and his vendees from so doing.
We have examined the cases cited by appellant and find nothing inconsistent with the right of appellee to maintain the bill.
The decree is therefore affirmed.
Affirmed.
