170 N.E. 669 | Ill. | 1930
Lead Opinion
On December 14, 1927, appellee filed her bill to enjoin appellant from erecting on a lot directly adjoining her place of residence a building violative of a previously established building line restriction. Construction of the building had been commenced shortly before this date. Appellant answered the bill, and thereafter completed the erection of the structure pending determination of the suit. Appellee filed a supplemental bill, setting forth the erection of the building and praying a mandatory injunction to compel removal thereof. The building constructed is a one-story business block designed for stores and shops and extends across the building line and the entire length of appellant's lot to the street line. The case is here on appeal from a decree awarding relief as prayed.
Appellant (defendant below) is the owner of lot 262 in Sheridan Drive subdivision, in the city of Chicago, said lot being at the southeast corner of Wilson avenue and Dover street. It extends east along Wilson avenue 173.81 feet to an alley, thence south along the alley a distance of 28.95 feet, thence westerly 170 feet to Dover street, thence northerly 52.8 feet along Dover street. Appellee (complainant below) is the owner of lot 261 in the same subdivision, *510 lying just south of lot 262 and fronting on Dover street. Her building on lot 261 is a two-story, four-flat brick. Her mother had acquired title to the lot in the year 1900, and appellee had been living there for more than twenty-five years.
In 1891 Sheridan Drive subdivision was laid out and platted into 354 lots by the Graceland Cemetery Company. It covered what might be designated as fifteen square blocks, although the blocks are rather rectangular than square in shape. Lots 261 and 262 are in the southwest part of the subdivision. There is a building line shown on the plat across lots 261 and 262, commencing at a point 50 feet east of the northwest corner of lot 262, running southerly across lots 262, 261 and eight other lots of the subdivision lying on the east side of Dover street and ending at a point 30 feet east of the southwest corner of lot 253. Thus the line does not parallel Dover street. A 30-foot building line parelleling Dover street runs across the front of the lots on the west side of Dover street, from Wilson avenue south to the end of the subdivision. No building line is shown on Wilson avenue.
In 1891 the Graceland Cemetery Company deeded lot 262 to one Dechent. This deed contained the following restrictions: "Subject to the building line restrictions shown upon the plat of said subdivision. * * * Neither shall any building be erected for any purpose upon the front portion of said lot lying between the building line shown on said plat and the street line of said lot. Every corner lot in said subdivision (except those lots fronting on Clark street) is sold and conveyed upon these further conditions: That no building shall be erected upon the front three-fifths of said lot facing upon the side street, nor shall any stable, barn or privy be placed upon the front three-fifths of said corner lot." Dechent was a remote grantor of appellant, who took title to lot 262 by deed dated September 16, 1927. This latter deed contained, among other *511 recitals, the following: "Subject to building and building line restrictions of record." In 1892 the Graceland Cemetery Company deeded lot 261 to one Regnell, the deed containing the same restrictive provisions as are above quoted from the deed to lot 262. Regnell was a remote grantor of appellee.
George L. Judson, a surveyor employed by the Chicago Guarantee Survey Company, testified for appellee that the northwest corner of appellee's building is 18 inches within the building line and the southwest corner is 34 7/8 inches within the building line; that there are two bays on the front of the building; that the point at the north end of the north bay is 16 7/8 inches over the building line and the point at the north end of the south bay is 4 1/8 inches over the building line. Judson testified from a plat made by himself and which showed the building line as established by the original plat in its relation to the buildings along Dover street. This plat was introduced in evidence. From it and Judson's further testimony it appears that adjoining appellee's property on the south is a two-story framehouse, the northwest corner of which is 37 1/8 inches within the building line and the southwest corner of which is 36 inches within the building line, with a porch extending about 54 inches west of the building line; that south of this is a two-story framehouse, no portion of which extends over the building line but with a porch extending from six to seven feet over the building line; that south of this is a two-story framehouse, the northwest corner of which is 42 inches within the building line and the southwest corner of which is 53 inches within the building line, with a porch from six to seven feet over the building line; that south of this is a two-story stucco house, the main part of which is about five feet within the building line, with a porch extending from three to four feet over the building line; that south of this is a three-story framehouse, the northwest corner of which is 68 7/8 inches within the building line and *512 the southwest corner of which is 84 inches within the building line, with a porch extending from four to five feet over the building line; that south of this is a three-story brick building within the building line but with one corner of a porch 5 5/8 inches over the building line; that south of this is a three-story brick building, the northwest corner of which is 23 1/8 inches within the building line and the southwest corner of which is 47 1/8 inches within the building line, with a bay extending 13 3/4 inches over the building line; that south of this is a three-story brick building well within the building line; and that south of this is a three-story brick building, the northwest corner of which is 1 1/4 inch over the building line and the southwest corner of which is on the building line, with a bay 5 1/4 inches west of the building line. This latter building is on the last lot of the subdivision to the south.
F.J. Setchell, president of the Hammond Dry Goods Company, who lived a few doors south of Wilson avenue on Dover street, described the porches on the houses along Dover street south of Wilson avenue as mostly open. This is further evident from photographs in evidence. Setchell further testified that there are no buildings north of Wilson avenue on the east side of Dover street that are built clear up to the sidewalk line; that to the naked eye these buildings appear to be east of the sidewalk line between 40 and 50 feet; that the same is true of the west side of Dover street north of Wilson avenue.
Witness Judson also testified as to the relation between the buildings and the building line on the west side of Dover street from Wilson avenue south. Without going into detail, it may fairly be stated that the condition is substantially the same as that above described as existing on the east side of the street and south of appellee's property, although more of the buildings have porches, and in some instances these latter project a greater distance beyond the building line on that side of the street than do the several *513 porches on appellee's side. Testimony was also offered by Judson as to the relation between the buildings on both sides of Dover street from Wilson avenue north to Leland avenue, the first east and west street north of Wilson. While instances appear near Leland avenue of somewhat greater disregard of the building line than exist on appellee's side of Dover street south of Wilson avenue, the first building on the east side of Dover street and north of Wilson avenue is within the line.
Fred Lund, a surveyor employed by Emmet Kennedy, testifying for appellant, stated that he had made a survey of the Sheridan Drive subdivision with regard to street lines. Based on a plat which he had prepared he gave extensive testimony with regard to the relation of buildings to the street lines, not only on Dover street south and north of Wilson avenue but on the other streets of the subdivision, some of them four and five blocks away from the property involved. This plat was introduced in evidence. With respect to the property along Dover street, the figures shown by Lund's plat and testified to by him do not coincide with those of Judson. Based on Lund's figure showing the bay of appellee's building to be 45 feet 8 3/4 inches east of the street line of Dover street, appellant asserts that appellee's building encroached over the building line four feet 3 1/4 inches. Appellant furthermore asserts greater encroachments all along that side of the street than those testified to by Judson. If the building line on that side ran 50 feet east of Dover street for its entire length to the south end of the subdivision it would be possible to follow appellant in his statement of fact, but from inspection of the copy of the subdivision plat introduced in evidence, to say nothing of the testimony and plat of Judson, it appears to be a mathematical impossibility that the building line at the points in question could be 50 feet from the street line, and it further appears that the building line at such points must of necessity be less than 50 feet from the street. *514 So far as the extent of encroachments over the building line on the east side of Dover street is concerned, there is no conclusive showing that the testimony of the respective witnesses is in conflict, and that of Judson, being directly to the point, may be assumed to be correct.
Before proceeding with consideration of appellant's assignments of error it will be helpful to have clearly in mind the general theory upon which appellee's equity rests. This was well expressed in Wiegman v. Kusel,
Appellant contends that appellee should not be allowed to maintain the present suit because appellee's own building violates the restriction complained of, citing several cases which are claimed to be decisive.
In McGovern v. Brown,
In Kneip v. Schroeder,
In Curtis v. Rubin,
In Ewertsen v. Gerstenberg,
In Loomis v. Collins,
The difference between the situation presented by the present case and that involved in each of these several cases is at once apparent. In all of them the space reserved between building line and street was less than in the present case, and the violations set up by way of estoppel were proportionately much greater in actual distance, to say nothing of being substantially greater in various other significant respects. In the McGovern case the violation of the restriction had been not only substantial but universal as well. In the Kneip case the violations by complainants were substantially greater than in the present case. Moreover, there was present the clear showing of a complete change of neighborhood, directly affecting the very property in question. In the Curtis case the court was faced with the spectacle of a substantially violating complainant seeking to enjoin a violation by one party while shutting his eyes to an adjacent and substantial violation by another. In the Ewertsen case complainants had permitted substantial violations immediately adjacent to their property on one side, then turned around and sought to enjoin defendant from doing something on property separated from complainants' by an alley and four other lots, upon *520 two of which substantial violations had been permitted. In theLoomis case it was sought to enjoin defendant from a violation not distinguishable in extent from that of complainants.
If the only purpose of a building line restriction were to insure uniformity in the appearance of buildings erected on the property there might be sufficient reason for holding that a party who has to any degree violated such a restriction, thereby himself making the purpose impossible of accomplishment, should be barred from any attempt to enforce it, but after pointing out that one purpose of such restriction is to secure uniformity, this court further said inO'Gallagher v. Lockhart,
In the light of these well-considered principles it cannot be said that because appellee's building projects in one or two places a foot or a foot and a half over a 50-foot building *521
line she cannot for that mere reason enjoin the maintenance of a building on the next lot which blankets her property on that side with a 50-foot wall extending to the sidewalk. The situation is quite similar to one presented to the Massachusetts court in Bacon v. Sandberg,
Whether or not this language of the Massachusetts court should be construed as laying down a rule to the effect that where a complainant has himself violated a building line the extent of his right to enjoin its violation by others may always be gauged exactly by the extent of his own violation, it does indicate forcefully that, taking in consideration *522 the general scheme back of the restriction, there is latitude in which to weigh the alleged violations of complainant and defendant, and although complainant may not enjoin others from doing the same as he himself has done, if his own violation has not appreciably conflicted with the purpose sought by the plan he may have relief as against one who threatens action which would completely abrogate the benefits intended. Such principle is entirely consistent with the decisions of this court and its recognition is decisive of appellee's rights, so far as the present point is concerned. We cannot say that there has been here any such material and substantial breach by appellee that a court of chancery should not interfere to protect her against a breach by appellant in a degree as flagrant as it would be possible to make it.
Appellant further contends that appellee's suit is barred because there has been a general abandonment and violation of the building line restriction by others, in which appellee has acquiesced. In this connection appellant relies upon the testimony tending to show violations not only on Dover street but throughout the entire subdivision, and calls attention to the principles of law laid down in McGovern v. Brown, supra,Kneip v. Schroeder, supra, Curtis v. Rubin, supra, and Ewertsen v. Gerstenberg, supra. In considering the law on this point it should be kept in mind that according to the plat no building lines at all were prescribed on Wilson, Leland and Lawrence avenues, (the east and west streets of the subdivision,) nor was any building line prescribed along Clark street, running north and south. On other north and south streets some of the building lines are 30 feet, some 35 feet, some 50 feet, and some irregular, as in the case of the one across the lots involved in the present proceeding. Those who laid down these lines clearly had in mind differences in conditions affecting the property on the several streets, and for this reason one is put on notice that evidence of violations on other streets *523 is not entitled to the force that it might rate if uniformity throughout were apparent from the plan adopted. As to the authorities cited by appellant on this point where relief was denied, reference to the discussion of them above will make clear that they are not conclusive of appellee's rights. In each instance the violation acquiesced in was substantial and was so considered by the court and was comparatively near at hand. The equities involved were in a different state of balance.
In taking up for consideration the effect of alleged acquiescence in violation of restrictions on other streets of the subdivision than that on which appellee's property lies, we are met at the outset by the following significant language from Loomis v. Collins, supra: "In the first place, it does not seem reasonable that the platting of a building line on lots fronting Jeffery avenue was intended for the benefit of all the lots fronting the other avenues in the subdivision. The disregard of the building line on Jeffery avenue would not affect the light, air or vision of lots fronting other avenues, nor their uniformity with reference to the location of buildings on such other avenues." Though the case does not clearly go off on this ground, the implication is that property owners would ordinarily have no ground for complaint about violations of restrictions on other streets. That the actions of owners on other streets would not bind those elsewhere was directly stated by this court in Ewertsen v. Gerstenberg,supra, strongly relied on by appellant.
In holding that acquiescence in violations of building restrictions is not material where they occur on other streets than the one directly involved, the New Jersey court said inMorrow v. Hasselman,
It would be going far to hold that appellee in the present case could protect herself in these matters only by protesting, to the extent of entering the legal forum, if necessary, against violations on other streets that affect her in no practical way whatever, or even upon her own street *525
but so far away or of such a nature as to be of no noticeable effect upon her own property in its relation to the restriction involved. The line beyond which a party should not be made to go under such circumstances should be drawn somewhere short of that point. The sound principle in situations of this kind would seem to be that the claim of acquiescence as barring a property owner from enjoining the violation of restrictions by others should be measured in its force by the relation of the asserted violation to the individual property of complainant, and such is, in fact, the very rule laid down in later New Jersey cases. (Brigham v. Mulock Co.
Appellant next contends that the case is governed by the rule of law that where the property involved has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief asked would be a great hardship on the owner and of no benefit to complainant, equity will refuse to intervene in complainant's behalf. This court announced such a rule in Ewertsen v.Gerstenberg, supra, and applied it in Kneip v. Schroeder,supra. There can be no question as to its soundness wherever the circumstances of a case are such as to make it applicable. In the effort to show that this rule is decisive here, appellant introduced considerable expert testimony as well as evidence in the way of photographs. A survey of all this evidence indicates that by it appellant demonstrated that there has been a noteworthy development of the Wilson avenue district of the city of Chicago, within which district Sheridan Drive subdivision may be said to lie. Portions of this district contain business activities, particularly along the east and northeast portions of the subdivision, and there has been a quick change from an outlying and sparsely settled region to one of large population. Recently many apartment hotels have been erected. Along Wilson avenue are many buildings used for stores and commercial purposes. The street level of many apartment buildings along Wilson avenue has recently been adapted to usage for store purposes. Certain witnesses for appellant testified that there have been marked changes in the Sheridan Drive subdivision in the past ten or fifteen years, and that in the ten years preceding the filing of the within suit about fifty new buildings had been put up in the subdivision. It was not definitely shown, however, that any of the buildings referred to had been erected in the immediate vicinity of Wilson avenue and *527 Dover street. These witnesses testified to the existence of four or five houses along Dover street between the south end of the subdivision and Lawrence avenue which took in roomers, one or two of which were south of Wilson; that all of the buildings on the corner of Wilson avenue and Dover street had some stores in them; that on the northeast corner of Wilson avenue and Dover street is an apartment building with four or five shops in the basement. From an inspection of photographs introduced in evidence it appears that this latter building is a large three-story brick, handsome in appearance, and the shops referred to are along Wilson avenue and unobtrusive to the vision. No sidewalk signs are in evidence over or in front of them. The plat shows that the building is not over the building line. The yard between it and Dover street is landscaped with trees and shrubbery. There is nothing about the corner or either street in that vicinity which carries the appearance of a commercial neighborhood. On the other hand, witness Setchell, who had lived south of appellee's property on Dover street for some twenty years, testified that he was familiar with the neighborhood; that Dover street, running south from Wilson avenue to Sunnyside, is mostly residences on both sides of the street; that the present condition of the neighborhood is practically the same as it has been for the last ten years, except that two or three flats have been erected. Photographs in the record show that the yards along the full length of Dover street, from the south end of the subdivision to Wilson avenue, are landscaped with trees and shrubbery. It is impossible to find in the record evidence which establishes any marked degree of change in the character and environment of the district in the immediate vicinity of Wilson avenue and Dover street. Appellant's argument is well taken only if appellee's right is to be held for naught because of changes which affect her immediate neighborhood in general, and her property in particular only very indirectly, if at all, so *528 far as the equity secured by the building line restriction is concerned.
The contention here made by appellant was made under very similar circumstances in the recent case of Vorenberg v.Bunnell,
An argument like that presented here was made inRowland v. Miller,
While the courts of Michigan and Pennsylvania have, perhaps, gone farther than it is necessary for this court to go to justify relief for appellee in the present case, their views may properly be considered. In Swan v. Mitshkun,
Appellant cites the case of Starkey v. Gardner,
Appellant calls attention to a quotation in the opinion from the case of Ward v. Prospect Manor Corp.
Appellant lays considerable stress upon the fact that many property owners along Dover street had before the present proceeding signed a petition to take the property along that street out of the second volume zoning district and put it into a third volume district, pointing out that by the terms of the Chicago zoning ordinance a building on a corner lot in a third volume district could occupy fifteen per cent more of the lot area than one in a second volume district, and that buildings on such lots might be erected proportionately higher. Whether considered alone or in connection with appellant's other evidence, this does not have a sufficiently strong bearing on the real issue to be regarded as in any sense a determining factor in the present case. It must be remembered that we are dealing here with a complainant's equity of long standing from point of time and of unquestionable individual force. Under the doctrine announced in Ewertsen v. Gerstenberg, supra, and Kneip
v. Schroeder, supra, this court is perhaps bound to permit it to be weighed whenever a defendant claims, as here, that changed conditions make further enforcement of a restriction unconscionable, but before such an equity is, in effect, wiped out by the action of a court of chancery, the circumstances demanding such *532
action should be more clean-cut and convincing than those shown of record here. As this court said in Wiegman v. Kusel, supra:
"Equity will not, as a rule, enforce a building restriction where by the acts of the grantor who imposed it, or of those who derive title under him, the property, and that in the vicinity, has so changed its character and environment and the use to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced. (Ewertsen v.Gerstenberg,
Appellant's final contention is that the decree is improper because appellee did not join as parties complainant certain necessary and indispensable parties. It appeared that on the death of her mother the property passed by will in trust for the mother's children, one of appellee's sisters being named as trustee, with a provision that if said trustee died appellee was to become trustee. The sister trustee died before the present suit. Appellant asserts that appellee should have joined with her every person having any legal or equitable interest in lot 261, and that the decree cannot properly be given effect otherwise. That appellee, as trustee, holds the title to the premises with power of sale seems to have been established. She had the right to bring this suit, and no substantial reason is apparent why it should be defeated by the objection made. Temple v. Scott,
The decree of the superior court of Cook county 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.
Decree affirmed.