*1 This sufficient unrebutted evidence was demonstrate use claimant’s of respondent’s exposed him to risk telephone greater of electrical shock lightning. caused This injury arose out claim- ant’s employment and was consequently compensable under the Act.
For above, reasons stated the judgment of the circuit court of Will County affirmed.
Affirmed.
BARRY, P.J., McNAMARA, McCULLOUGH, CALVO, JJ., concur. al.,
WILLIAM PASULKA Plaintiffs-Appellants, KOOB, et v. FRANK N. Trustee, al., Indiv. et Defendants-Appellees.
Third District No. 3 — 87—0335
Opinion 9, 1988. filed June *4 LUND, J., dissenting. Ltd.,
Barclay, Sinson, Swabowski, Chicago (Thomas Damisch & J. counsel), for appellants. O’Conor,
Myers, Daugherity, Berry Ltd., & (Eugene Ottawa P. Daugherity O’Conor, counsel), appellees. and Andrew J.
JUSTICE SPITZ delivered the opinion court: This appeal is an from a directed verdict entered in the circuit court of La Salle At County. the close of plaintiff’s evidence, the ver- dict was directed in favor of Koob, defendants Frank N. individually and as trustee under 18, 1978, a declaration August of trust dated and the Sand Western and Gravel Company (Western), an Illinois cor- poration. The plaintiffs, Pasulka, William and Marcia in an 11-count amended complaint, sought money damages injunctive relief stemming from: (1) plaintiffs’ of a purchase parcel land from Koob at which time they obtained a first right of refusal purchase “adja- cent” land Koob owned and “adjacent” over which land were ad- vised certain restrictions (2) applied; sale subsequent to Western of an option another of land purchase parcel which Koob owned at the time of original sale to and from mining gravel. Western is sand and presented at trial is chronological hereafter set out in order. 2, 3, 10, Koob owned 320 acres in sections and 11 in
Dimmick La Township, County, Salle Illinois. North 35th Road ran over and along boundary between sections and continued over and along boundary addition, 3 and between sections 10. In the Little Vermilion River coursed over the in sections 10 property and 11. acres, In that he year, entered into an to sell 80 being the east one-half one-quarter northwest of section Bernard and agreement, Loretta Cohn. this un- By the Cohns would $86,000 dertake to purchase subdivide 80 acres and pay price *5 became of lots. This property sales subsequent of proceeds from the Estates, a area covenants as Lane residential with known the Timber record, enterprise, of including prohibition the commercial filed of business, or home profession occupations. and later individually and November
Between June 1977 22, 1978, Koob August a of trust dated a trustee under declaration 3 to and Craig 3.448 acres section parcels: sold four additional 3 to and Anita Al- in sections and Donald Lamp; Shawn 3.515 acres Eliza- a in section to Kenneth and bert; plus driveway 1.770 acres McCaleb; Delaney. in section 2 to Janet In each beth and 2.228 acres of the restricted the use sales, agreement subsequent of these sales in the right the and Koob retained a of first refusal subject property, The the later sold the restrictions were purchasers. event land was or land, all those who would take from sellers binding to run with the of in an negotiated right also a first refusal Lamps purchasers. agree- in their legally acres of section 3 described additional 1.071 right of first refusal to an additional tract ment with Koob. A similar agree- with In from Koob. the was stricken the Alberts’ of first refusal was restricted to ment with Koob’s Delaney, heirs, assigns, did executors and Koob, pass and his personally, of survey of these agreements, plat devisees. The restrictions of of record in the recorder deeds office La tracts were not filed Salle County. began to for a prospective
In the search plaintiffs fall home- for a investment and a looking permanent homesite. were They nature, woodlands, farms, and educational systems site located near also wanted atmosphere. for in a quiet They their four children and future to additional land. purchase an opportunity plain- a advertisement July newspaper In Koob answered had exten- 27, 1930, and Koob an placed. July plaintiffs tiffs had On conversation, In that Koob informed sive discussion. that lived his land was and about the wildlife
about how beautiful contained a remaining 229 acres He advised them that his there. time, At creek, a a number of trees wildlife. pond, large farming. for rest used in the area. The there were four homes and wanted to Lane Estates developed he had Timber Koob stated buying who were people rest of his land all preserve the land on the the 80 acres of purchased he had him. He also stated he a junkyard Road it was North 35th because north side of area. and transform it into beautiful wanted to it up clean He his was restricted. in which land ways Koob talked about all he would all of his land and to restrict obligation said he had ever do sell residential homesites with his land was fine and continue grain He also he was fine residential farming. developing stated along area in- way protecting people’s North 35th Road and had vestments without the and trouble of a formal subdivision. bother told he his anyone “messing up” did not want land he particular, and indicated he would enforce the restrictions. ad- vised he did not want them to build an untraditional house would neighborhood. devalue the Nor would he approve business, their family assembly involved and distribution residential water if it or purifiers, entering had customers employees on the land. He wanted to with Craig Lamps delivery discuss *6 equipment to a semitractor-trailer three or four a plaintiffs by times year, although Koob saw no with it. He asked in problem Lamps plaintiffs’ if presence right. pointed that was all an Koob out aban- gravel doned on his it pit reopened. land but said would never be The pit had last been used between He 1967. said he hated quar- ries because land permanently destroyed and would never sell to a In quarry. discussing with plaintiffs Koob other homesites were at, looking Mrs. Pasulka her expressed living concern about near a sil- Mendota, ica near plant and Koob discouraged her from a choosing homesite near a pig farm. Plaintiffs if asked Koob he would willing be to sell them an additional of parcel land to the Koob south. he replied would, but at not time. plaintiffs inspected When the property, plaintiffs could see the of 10, the old mine tips spoils section south of river, the but not plaintiffs did across the to look at go river the pit.
Koob showed a of plaintiffs seven tracts of The survey real estate. plaintiffs 2, ultimately purchase parcel decided to tract a 4.287-acre 10, located $25,500. in section at a price of A proposed agreement was drafted Koob’s by attorney which was subsequently modified at the request plaintiffs, who were In represented counsel. the by 9, modified agreement, provided with a paragraph part, plaintiffs right of first refusal as to owned the Seller.” “adjacent property by In addition, a page was added to the on the paragraph restrictions which states: “The property Purchasers are assured that these re- strictions any adjacent shall included in the the Seller of sale 7, property owned him.” The sale consummated on November was 1980.
At the time of plaintiffs’ neighborhood the was purchase, quiet, peaceful, and basically farming beautiful with much wildlife. It was homes, community including with 27 Lane those Timber Estates. The facility closest industrial was Sand three miles Manley Company, in good miles The road was away. 2¾
away, Troy Quarry, Grove traffic. normally light condition with 1983, ad in the La Township placed Dimmick Salle August purchase to a one-acre for use as a seeking heavy
News Tribune site he storage building. Koob answered ad and said equipment or 3 he willing seven-parcel plat tracts 1 illustrated on had sell to tract contiguous shown Tracts and 3 previously plaintiffs. east, respectively. on the west purchased by plaintiffs, thereafter, Koob mentioned to that the plaintiffs township Shortly Pasulka their replied land. Mrs. purchasing was interested township the land to the be- selling Koob prohibited restrictions. of first refusal and the Koob plaintiffs’ right cause Dimmick wanted to disagreed, Township which claiming parcel and, therefore, subject agreement. to the “adjacent” was not buy later, Koob and admit- telephoned plaintiffs two weeks Approximately correct. ted their the contract was interpretation seek- a letter Koob On wrote September 16, 1983, Thereafter, 1 and on ing purchase tracts 3. November County La recorder of recorded at office Salle unilaterally by plaintiffs executed deeds a “Memorandum” first tracts and 3. had a refusal stated the granted option pur- Western an On December 195 feet south of of land located parcel approximately chase 47-acre For this Western point. option, at its nearest plaintiffs’ property, to mine $2,000 did not authorize Western option to Koob. paid on 22, 1984, it was extended on March but expire sand and was *7 of to the southeast option quarter pertained number of occasions. of the northeast part of section 10 and quarter the northwest 10, south of the cen- of section quarter lying of the northeast quarter no to sell this land Koob made offer ter of the Little Vermilion River. to plaintiffs. 1984, acres of the south- 9, sold the west five January
On Koob Cor- Conkey 3 to of the southwest of section quarter quarter west of sale until after it did not aware The Pasulkas become poration. ei- to property plaintiffs not offer to sell this occurred, and Koob did op- tree for a commercial Christmas ther. land Conkey purchased this sale be- about complain did not Koob plaintiffs eration. The mining operation. concerned about the Western cause were more they and Bit- 1984, met O’Halloran 24, with plaintiffs On 23 or January gentlemen These of Western. vice-president terly, president time some negotiating with Koob had been indicated Western ad- Plaintiffs were property. their plaintiffs purchasing prior to option vised Western intended to mine sand from the land under large deposit that this not a of sand and would be used in a up agree- of couple years. plaintiffs’ Mrs. Pasulka informed these officers gave ment with certain which rights Koob believed plaintiffs precluded a mine from in the area. strip operating 1984, 27,
On recorded a unilateral mem- January second orandum, their prepared by attorney, which stated that the had a of first right refusal in all owned Koob in sections property 10 and 11. Mr. Pasulka also a letter regarding wrote the Pasulka agreement and Western, hand delivered the letter to together with copy Right second of First Mr. Pa- “Memorandum Refusal.” sulka also contacted his objection Koob and stated to the op- Western addition, tion. In injunction filed a for an in the petition cir- cuit of La County court Salle (No. CH—20), but later voluntarily 84— dismissed it.
On or 18, 1984, about July the defendants entered into adden dum to the purchase. option Pursuant the terms of said adden dum, gave Koob Western the right to remove sand and gravel from mine, the strip and Western cents for agreed pay every Koob 50 yard 25, cubic sand and gravel July so removed. On Western resumed its mining operation which it had been conducting intermit tently 29, 1984. since February August
On Koob entered into an with Unimin Corporation (Unimin) whereby granted option Unimin an to pur- chase a parcel 20-acre north North 35th Road. Plaintiffs did not be- come aware of the Unimin until option September 1984.
On September 7, 1984, Koob and Western entered into second addendum to the option purchase granted to Western an gross easement in to tract which land “may any be used for and all purposes of said Western Sand and Gravel On Company.” September 12, 1984, the plaintiffs recorded a third “Memorandum Right First Refusal” which stated their first refusal and the restrictions all of applied 3,10, Koob’s land sections and 11.
Plaintiffs presented also concerning the nature and ef- mining times, fect of the At operations. there have been three bull- dozers and strippers as well as or five at operating four endloaders addition, the same time. In there heavy hauling trucks sand and gravel from the mine and between 32 to 75 averaging trips per round occasion, On day. the trucks make as 200 many trips per day. round The mine generally operates p.m., between 6:30 a.m. and 5 six days week, excluding winters. Plaintiffs complain various engines and *8 noise, dust, machines cause and odors. by expert of was plaintiffs’
The loudness the noise corroborated of mine witness, strip the ex operation who testified that Western’s of the Illinois 901.102(a) ceeded the noise limits set forth section Ill. He also (35 901.102(a) (1985)). Administrative Code Adm. Code that the noise source of and very great annoyance stated would be living the of plaintiffs’ detrimental to those inside areas perhaps tests, his there house. On the on which their conducted day expert plain the Another of activity mining operation. low at extremely in witnesses, Wakely, acceptable tiffs' Dr. Harold testified as the of noise these limits were exceeded. door limits and stated odors, noise, dust, plaintiffs they the the state Because of and court, of and play patio, have the full use the enjoy been unable Moreover, the win- they keep other of must portions property. their of the during day dows of their home closed because and doors even air-conditioning, noise The do have and odors. the house. closed, still hear the noise inside with windows normal In addi- carrying This noise hinders them from on activities. tion, mem- among family the amount of stress it has increased bers. building their have been
Since October land, $297,000, including improvements home. The costs been have thousand The have several plaintiffs’ expended labor. is lo- on their home. house hours construction work performing residential feet their closest approximately away cated is to 700 feet from strip mine neighbor. operation The main the house. pol- has River become plaintiffs, the Little Vermilion
According driving through into it and gravel luted Western’s dumping because of dumps which Western it, minespoils erosion of and because The road destroyed. on has been Vegetation creek. bank However, damaged. house is which in front of the passes plaintiffs’ limits weight not shown evidence of violations plaintiffs have on the road and on gravel trucks sand and spill Western's trucks. The car on vehicles, plaintiffs’ resulting other broken windshields traffic. of truck three has been an increased amount occasions. There there removed and 178,572 have been gravel Over tons sand and trees. A cannot sustain hill minespoils, mostly clay, large clerk’s office on Western, County the La Salle filed with report Conser- Surface-Mineral Land 16, 1987, with the compliance March mine, Act, to surface application contains vation and Reclamation sur- of the lands affected plan maps reclamation proposed Western of its a statement by That also contained mining. face report goal to *9 the into four-acre lake with a wild- develop a natural property life swimming, fishing, habitat to be used for and entertain- company ment. 24,
On September 1984, wrote to Western plaintiffs demanding cessation of it mining operations because created a Au- nuisance. On gust 14, 1985, plaintiffs again asking wrote to Western them to ac- gravel count for the sand removed Western “as have by 5, been wrongfully 1984, converted and sold On October you.” plaintiffs this filing initiated lawsuit a in the complaint circuit court of La Salle County.
In nearly
one of
11
of
every
plaintiffs’
the
counts
complaint,
equitable relief as well as
is
This means
damages
sought.
that
issues,
of
most
these
there are two standards of
As to
review.
the
matters in
the
chancery,
court entered
for defendants at the
judgment
close of plaintiffs’ case in chief. It is as though defendants decided not
to present any
gone
evidence. Had the matter
to the jury, the chancel
lor need not
accepted
have
the
v.
jury’s
(Carroll
verdict.
Hurst
(1982),
Ill.
984,
1344;
103
3d
431
App.
Fleming
Fleming
N.E.2d
(1980),
532,
App.
879.)
85 Ill.
3d
406 N.E.2d
Unless the chancellor’s
findings
against
evidence,
of fact are
the
weight
manifest
the
or
there is some other palpable error,
findings
the
not
will
be disturbed
on appeal. Brown v.
(1969),
Commercial National Bank
42 Ill.
365,
2d
cert,
894,
247 N.E.2d
(1969),
961,
denied
396
U.S.
24 L. Ed. 2d
On the other for matters of the trial court is only permitted to remove the case the jury by from directing verdict evidence, when all the viewed nonmoving most to the favorably party, here the is so in plaintiffs, moving favor the overwhelmingly party that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Ill. (1967), Co. 37 2d 229 504.) N.E.2d This not mean the does existence of some evidence fa voring will defeat the verdict. plaintiffs supporting directed Evidence significance light nonmovant fade when reviewed all may (1976), one v. Lane proof, rendering only possible. (Roedl verdict mind, 41 Ill. 354.) 3d With these standards App. evidence as each count must reviewed. COUNTS I THROUGH IV against Counts I III are of contract actions Koob. breach I Count the breach of of first refusal and count III involves II and involves breach of restrictions. Counts IV actions against for tortious interference with same contractual Western III, set I and rights respectively. as are out counts law, “adjacent” court found the word was As a matter of trial to tracts 1 and 3 at the time Koob and intended apply did have Having entered into their contract. ruled option under the rights mining to the Western property Koob, trial could not have tortiously court also ruled Western and directed a verdict on rights interfered with contractual plaintiffs’ II counts and IV. contract unambiguous of an written interpretation Likewise, law the deter
question of for the trial court determine. of law. question exists is also ambiguity mination whether 534.) Sim (Nerone v. Boehler 34 Ill. N.E.2d of a contract ply agree meaning cannot on the parties because mean, ambiguous. (Joseph Michigan Mortgage does not it is v. Lake 663.) if the Even court Co. Ill. N.E.2d prior contempo determines is an and evidence ambiguity there *10 to ascer raneous transactions and other extrinsic facts introduced meaning may tain the true the the contract meaning, contract’s a of law the are uncontro still be determined as matter where facts one meaning. verted or the to have Nerone show contract but 888, 340 534. (1976), Boehler 34 Ill. N.E.2d case, this the It is a merely facts are controverted. word “ad parties legal case of the about the effect of the disagreeing result, a it for the trial to take this jacent.” appropriate As was court from jury. matter the 3 Ill. 2d City Chicago In Bowes v.
cert, L. 75 the def denied 348 U.S. 99 Ed. S. Ct. adjacent is “adjacent” Contiguous property inition of was discussed. Adjacent be adjacent contiguous. not all need property, property but the another vicinity piece can near or in or neighborhood mean to on facts of each adjacent is the property. property depends What case. their they purchased on the facts that when plaintiffs,
Based tracts, Koob, plat representing relied on a of seven (1) property went on the (2) of Koob’s never portion property, a limited only very it, the to which restric- (3) only property to sight inspect mine separate (other the than apply tions were shown to evidence by subdivision) the tracts to for were by sold Koob Cohn property parties in- trial determined the correctly on that the court plat, land to tracts the seven-tract to limited the on tended the restrictions be to additional 200- the some plat. apply To conclude that restrictions is also This interpretation Koob is unreasonable. plus by acres owned for That paid price, the their supported by price by plaintiffs property. $25,500 acres, is to meant to relin- four-plus too low believe Koob control rest of his quish over the property. reasoning applied right this can to the
Similarly, plaintiffs’ action, instant plaintiffs’ first refusal. In the trial court limited rights under to tracts and 3 .on seven-tract only contiguous those plat, plaintiffs purchased. tracts to the one supported right This decision is the memoranda of of first re- by First, fusal filed over by plaintiffs. right claimed tracts they only 1 and 3. to did Only option given after Western claim they was their right of first refusal all 10 and 11 applied property sections by owned Later third claiming Koob. filed a memorandum of first right refusal all of land in Dimmick Township. Koob’s Plain- tiffs’ actions it indicate was the intention of the originally parties limit restrictions of first refusal to and 3. tracts the trial
Certainly, rulings court’s are not against chancery the manifest of the There weight evidence. to support evidence Furthermore, rulings. those all the viewing most favorably plaintiffs, evidence so overwhelmingly favors defendants no verdict the one contrary to directed trial court could ever stand. Once the “adjacent” court ruled the term the agreement under parties was restricted to tracts and 3 and had no contractual rights Western, to the land pertaining being mined then there nothing I, II, left for the jury was decide as counts III, or IV. s trial,
During plaintiff sought letter have a admitted it i.e., land-owners, because referred to plaintiffs “adjacent” adja cent to the Western mine. The ruled court that a letter from a vice- president of Western to person another not a to the party Koob-Pa sulka transactions cannot be used to define in a help a term contract between Koob and Pasulkas. the vice-president thought What *11 bearing had no on meant “adjacent” plaintiffs what “ad addition, in their jacent” agreement. In this evidence of non- really is on the expert opinion ultimate fact to be the court determined Therefore, this case. the trial letter in correctly court ruled the be admissible. V
COUNT court, Count action The trial against V an for fraud Koob. verdict, in directing a ruled that future intentions are not a .Koob’s for fraud and facts to con proper subject were not sufficient stitute fraud as a matter of The law is misrepre- law. clear. Neither future nor the failure in the concerning happen
sentations
events
in the future constitutes
something
a
to do
perform promise
125, 513
(Gold
v. Vasileff
160 Ill.
3d
(1987),
App.
tort of fraud.
that Koob told them he would
complain
N.E.2d
Here
446.)
plaintiffs
in
may
in the future. That
have been Koob’s
gravel
not
open
pit
That’s not fraud.
time,
tention at the
but he
his mind.
changed
COUNT VI
against
Count
and reliance
Koob.
alleges promissory estoppel
VI
used to create a con
and reliance are theories
Promissory estoppel
However,
argue
now
tract which otherwise would
exist.
are Kurti
by plaintiffs
fraud as the
of count VI. The cases cited
basis
v.
Valley Radiologists,
Fox
Ltd.
124 Ill.
3d
App.
v.
Construction Co.
Joseph Hospital
and St.
Corbetta
N.E.2d
(1974), 21 Ill.
Kurti held that making can be fraud if a mis- misrepresentation out of duty duty arising or a representation fiduciary also breaches no with relationship. fiduciary relationship a confidential Koob had real estate and were selling repre- Koob was them plaintiffs. sented anby attorney. Joseph Hospital, St. technically it was decided that statement making
true made which the the statement later person when statement, creates a to disclose misleading duty learns to be a false or on the acting correct known basis anyone information Hospital in St. Joseph However, original statement. statement inten- fact, or future opinion was a statement of not a statement Joseph St. Therefore, reasoning tion as in the case. present Hospital here. application has no brief, suggestion have also raised the
In their tract were prior plaintiffs’ purchasing to them Koob’s statements only can Negligent misrepresentation negligent misrepresentations. information for supplying lie where the defendant is the business on this information business rely of others who then guidance Homann (Grass 130 Ill. third parties. transactions with case do not support The facts in this 711.) theory. misrepresentation under a argument recovery negligent COUNT VII in refer- and reliance estoppel argue promissory Plaintiffs actually of an oral for breach VII, at law sought recovery ence to count complaint, amended of plaintiffs’ contract. In to count VII response contract vio- such an oral defense that defendant filed an affirmative
205 59, 1987, 1 et (Ill. par. seq.). the Frauds Stat. eh. lates Statute of Rev. for sale prevents The Statute of Frauds the enforcement a contract lasting longer than of land or a an interest land creating contract writing, signed by person contract is in year, one unless the authorized, in whom is or another against sought legally enforcement par. Ill. Stat. 2. writing, sign person. to for such Rev. ch. and agreement Plaintiffs the sales between Koob suggest However, is to Statute of if satisfy sufficient Frauds. agreement, on that it is not an oral contract which relying they seek to So the must be enforce some trying enforce. and agreement other between themselves Koob.
It if is contention that the written restrictions do plaintiffs’ apply to the land then same restrictions should question, But apply agreement. because of some oral the oral reduced to a contract. instrument is conclusively pre written That (Johnson Flueckiger (1980), sumed include all material v. terms. result, Ill. 3d As a App. 1317.) 401 N.E.2d the enforcement of any oral contract barred is the Statute of Frauds.
COUNTym alleges Count VIII Koob and Western breached a plan develop- ment and permanent against seeks a injunction both defendants. Re- lief sought in this count is equity only.
It appropriate is for a gen court find the existence of a eral plan development where a tract into subdivided lots con veyed to separate purchasers subject identical designed conditions operate as inducements to the of the lots and to create purchase reciprocally rights enforceable nature of an “easement of incor poreal hereditament” the other of the (Wayne lots subdivision. v. Baker (1955), App. 6 Ill. 345.) A general plan may be found even where there are complete omissions restrictions hand, some deeds. On other there are factors which tend to negate the general existence (1) absence of notice of plan: any restrictions in subdivision; the recorded of the plat (2) absence of the common grantor imposing lots; similar (3) restrictions on all failure of the deeds to show such run or restrictions with the land bind the successors assigns and grantee. original Wallace Hoffman 336 Ill. N.E.2d 654. construing deed, the parties’ intentions are determined from the whole, instrument as a if there is doubt any concerning covenants, the restrictive it is to be construed in favor of full strictly and unlimited use of legitimate against restrictions. property 148, 155N.E.2d 664. Ill. v. Bowles
Henricks reviewing of witnesses considering testimony After had not herein, the trial court decided documentary has seen a chancellor development. Where general plan proved witnesses, position chancellor is in a better and heard all the findings his reviewing court will not overturn and a credibility, assess *13 Brown v. of the evidence. weight the manifest against unless are they 365, 247 894. 42 Ill. 2d N.E.2d (1969), National Bank Commercial and the case, plat no recorded subdivision In this there is gravel pit to include the did not Koob showed purport the land Koob and various and between agreements area. The deeds of of lots and with no no size uniformity with convey property owners a home Plaintiffs could business. operate in restrictions. uniformity to their residence. in addition apartment could construct McCalebs machine shed of unlimited dimensions could construct a Lamps trees grew unlimited use and Christmas raise had ponies. Conkeys finding the trial of Therefore, it cannot be said court’s commercially. weight the manifest of against was development no of general plan the dis part error on the of court any the Nor was palpable evidence. of propriety do contest the although plaintiffs by plaintiffs, closed of de general plan the issue of a rulings regarding evidentiary their velopment. pursu- his land developing been
In Koob had attempting prove tried to in- since general plan development ant to a at Lane Es- the of lots Timber purchases troduce: the deeds to (1) of houses tates, (2) photographs signed grantor; all of which Koob Estates, made a motion at (3) in Lane Koob Timber meeting prohibit junkyards. Township Dimmick must tend to relevant, offered the item evidence To be in issue is that a matter or demonstrate prove controversy a fact and ac light logic, experience it in testing more or less probable, Co. v. Yellow Cab (Mueller of human behavior. cepted assumptions 595; Needy Sparks N.E.2d 110 Ill. However, even relevant evi 327.) 51 Ill. in unfair preju result if its admission would excluded may dence and the delay, undue issues, misleading jury, the dice, of the confusion Graham, & Cleary evidence. M. of cumulative needless presentation 1984). ed. §403.1, (4th at of Illinois Evidence Handbook Graham’s since cumulative the deeds were argues that The defendant Timber with Koob’s involvement established already had recorded plat and the the with Cohn agreement through Lane Estates signature that Koob’s arguing seem be Plaintiffs and restrictions. con- logical the The development. shows his continued connection with clusion, however, pursuant agree- the deeds to his signed that Koob rights ment with Cohn to release all to lots sold the subdivision as were and as the area. developed sold Cohn Lane The trial court ruled that the deeds the lots in Timber Estates prove general develop- did tend Koob had plan Therefore, the ment for the rest of his land. the court ruled deeds a logical ruling, were not material to the issues in the case. This is sign light since the deeds in required event, with testified he So any signed Cohn. Koob had deeds. the deeds are cumulative.
So are the Lane Es photographs of houses Timber as they general argue tates relate to a Plaintiffs plan development. been they should have admitted to show nature of the area on the formal, nuisance issue. court ruled that Timber Lane is a dedi cated with platted subdivision restrictions and therefore is entirely different rest He also property. stated that testi mony neighborhood character of the establishes subdivi sion pictures and that the nothing add to it. Since plaintiffs had testi fied as to the types of houses in Timber Lane Estates and their mine, to the proximity photographs are cumulative. Plaintiffs *14 not prejudiced ruling. this by
As motion on the ordinance at the Dimmick Town ship meeting to prohibit junkyards, was made in 1966. The court it ruled was irrelevant. remoteness in time to all the transactions in evidence supports ruling court’s and there is logical no connec tion between not wanting junkyards and a having general plan of de velopment.
Another evidentiary ruling which asked this court to review was the refusal by the trial court to allow present evidence Koob’s of “An violations Act to revise the law in plats” (Plat relation to Act) (Ill. Rev. 109, par. Stat. ch. 1 et seq.), governing subdividing of land into less than five acres. Plaintiffs argue going great Koob pains to avoid formally subdividing the farm and that the court have should allowed them to examine wit nesses as to fact failed file affidavits and appropriate comply with the Plat Act. Specifically, Koob’s testimony was that he agreed to sell the Alberts three-plus acres but deeded them five acres. The court ruled that Koob’s state of mind dealing with Alberts has to do with a nothing general development. plan Since Koob’s agreement with record, and deed to the Alberts were the plain tiffs would need no other they sought establish point that the Plat Act was addition, to testify In for a witness to make. excluded. properly violated is a conclusion IX COUNT a nuisance. of the mine constitutes alleges operation IX Count in- sought only only originally is addressed to Western This count relief, damages it later amended to seek although was junctive count, the trial court found it was In on this directing well. verdict mine to the trial legal According was a business. that the undisputed its mine court, operated to show presented no evidence was Western from departed mine or that it standards any other differently mines. gravel other in of another’s
A nuisance a substantial invasion private land, intentionally unreasonably, done or negligently terest opposed to the landowner as annoyance causes a substantial In landowner have. may sensitivities the offending any special merely nuisance, the court bal an constitutes activity whether determining land, use of the the suit resulting from defendant’s ances the benefit and the harm to activity, plain location to defendant’s ability relief, a grant injunctive the trial court has refused to tiffs. Once order if it is to the only contrary will overturn the reviewing court Ill. App. Carroll v. Hurst weight manifest of the evidence. 1344. 3d 431 N.E.2d here, plaintiff sought Carroll, parties relied on both out pointed nuisance. The court declared a junkyard
have defendant’s junk of defendant’s any there was no evidence in its decision that there that defend testimony Nor was property. landed on plaintiff’s The court then added view. unsightly of his land created ant’s use to a law, does not have a landowner that, “under Illinois at Carroll, Ill. land.” neighbor’s of his view pleasing at 1349. 431 N.E.2d Ill. Campbell Soup Co. Corp. Theatre
Arbor outdoor theatre the owner of an involved a suit The court farm as a nuisance. of a mushroom the declaration seeking where the be endured from odors must said the occasional discomfort of the land was and the use locality the rural suited occupation in existence had been *15 composting operation Also the unreasonable. the farm the owner knew in 1961 and The theatre started since 1947. was there. 961, 394 N.E.2d Ill. 3d (1979), App. 75 v. Kitchin
In Richardson slaughterhouse. of a the construction sought enjoin plaintiff and in or- society have an industrialized that we recognized The court accept der benefits a we must certain reap the of such also society, inconveniences. bar, at these to the case we consider the
Applying principles it gravel pit present plaintiffs Although when in. was not moved then and even in operating, contemplate possibility did about that other quired mining Koob There also two possibility. operations within three miles. complain unsightly Plaintiffs view, but do not have a to a There is no right pleasing view. in evidence is in an manner or a manner operating Western unlawful any from the It is a gravel legiti different standards other mines. area, mate a business, primarily surrounded operating suitable recognize it, farmland. there will We be some inconveniences but in our there are with we must society some inconveniences live Therefore, in order to benefit from industry. injunctive denial relief is not against weight manifest of the evidence.
aWhen seeks party damages under a nuisance theory here, the trial court, determined, law, a has as matter of the activ ity is per se, not a nuisance then the the com question whether plained-of activity is a nuisance is fact for generally question of jury. However, that question may also taken from the jury under rules governing directed (Patterson Peabody verdicts. Coal Co. Ill. 48.) N.E.2d Under the facts presented in this case, agree we with the trial court that when all evidence is viewed plaintiffs, most favorably is so overwhelm ingly favor of defendants that no verdict ever could stand. contrary X XI COUNTS AND X is an
Count action for XI is an conversion count intentional, action for waste. Conversion is the depriva unauthorized another, tion of property from or for permanently an indefinite time. (1) elements of conversion are: defendant assumed ownership, do minion or control plaintiff’s personal over property wrongfully and authorization; (2) right without has a to the plaintiff property; (3) has a of the plaintiff possession (4) immediate property; demand for has been possession property by plaintiff. made (Scheduling Corp. America v. Massello Ill. 298.) Waste occurs when someone who has lawfully pos it, it, session of estate neglects real misuses alters it or it destroys so that the of persons having subsequent right interest possession prejudiced some or there is a diminution in the value of way land being (78 wasted. Am. Jur. 2d (1975).) Having Waste ruled §1 have no rights property optioned West- *16 X and ern, the directed verdicts as to counts appropriately trial court XI. counts,
Relative to these there is a last matter to con- evidentiary sider, a statement of monies to which the trial paid by Koob Western court refused to admit into evidence. Plaintiffs claim this is relevant because entitled profits, would be to Western’s without deduction either expenses, damages, under the conversion or waste theo- ries. determined Having plaintiffs have no cause of action for conver- waste, sion or we need not consider the of the propriety trial court’s evidentiary ruling of this document. denying admissibility we consider
Lastly, portions motion to strike of defend- plaintiffs’ ants’ brief on Plaintiffs appeal. complain appendix defendants’ minor, their brief and other isolated statements are not supported by record, the record. This court thoroughly has reviewed the and while denied, plaintiffs’ motion strike we can assure that this court only portions has relied on those of the record before properly the court. reasons,
For the of the circuit court foregoing judgment La Salle is affirmed. County
Affirmed.
GREEN, P.J., concurs. LUND, dissenting:
JUSTICE general I dissent as to the trial court’s no finding determination I would admission into evidence of plan. rulings denying reverse the deeds of lots in Lane Estates representing purchase Timber I of the houses in Lane Estates. would also photographs Timber provide gen- determination the existence of a specifically platted eral is not conditioned on the existence of a subdivision. plan stated the as to correctly Our brethren the Second District law (1980), enforcement of restrictions in Osinski v. Collins 85 Ill. 201, 183, 186-87: 198, burden of “Those who seek to enforce a restriction have the their proving properties. (Housing a clear intention to benefit God, 100, 108; (1948), v. 401 Ill. Punzak v. Authority Church of Annot., 11 Ill. 2d 119-20. (1957), generally DeLano See this restric (1973).) A.L.R.Sd 578-79 ‘The enforce based, upon tion the use of the land is not upon upon theory made but subsequent purchaser, of im- general plan each a lot with notice of a purchaser buying compelled can provement assents thereto and impliedly lot, at the other comply therewith suit the owner any without reference the order in which the lots sold.’ were Wayne v. Kusel v. (Wiegman (1915), 270 Ill. 523. See also Baker 374.) 6 Ill. The intention the re ‘from striction to benefit other must be properties found itself, of the deed language considered in connection with the *** (Hays St. circumstances secret intentions ***.’ Paul Methodist Episcopal Church 636.) Ill. significant bearing plan factors the existence of a upon general been have stated include the presence restriction language express identical deed and every language *17 showing deed restriction intended be binding was assigns. (Henricks v. Bowles successors upon and 20 Ill. (1958), 148, 151.) exist, however, A general plan ‘even may there though complete omissions of restrictions in some of v. the lots in the area affected plan.’ Wayne Baker by 6 Ill. Dahlquist v. (1955), 369, 374; see also Metcoff 222, Ill. App. 228.” The an case is of of present example logic the lack in limiting the finding general of a to a plan platted subdivision. Koob specifi- was cally avoiding the subdivision requirements while at the same time seeking to establish a rural utopia. residential The various restrictions deeds different this To of pic- establish intention. allow an owner turesque setting rural to lead various owners into rural building resi- dences with the expectation a residential then to community and incorporate inconsistent use much wrong allowing is as one lot in a platted residential for subdivision be used fac- junkyard, or tory, other inconsistent use.
The which east-west road lot borders Pasulka’s is a section line 1,320 road runs feet on the north Lane side Timber Es- 1,320 tates. next feet The west are bordered on the north going by tract, tract, the McCaleb and the Albert It Delaney appears tract. lies to only agricultural 1,320 land the south of the feet. second The 1,320 next feet are north by tract, bordered on the of the Albert part tract, then tract, then an Lamps finally by undescribed 1,320 farm The Conkey tree tract. south side of this feet bor- 3, dered 1, 2, has lots by running what been described as nu- merically from the west. Pasulka’s homesite is lot on 2. Lots still under evidently ownership. remain Koob’s Lot 4 is access road for company removing sand.
The indicates that the was to create plan a rural residen- tial Residential restrictions were on placed environment. various tracts the entire along three-quarters of a mile of the section road. Timber Lane Estates was sold contract for purposes large resi- dential lots. Sheds for animal use were anticipated, but restric- tions on a common or To appear design say based scheme. now the original developer adjoining can allow a use of land in a nearby use, is, manner my inconsistent with rural residential opinion, logic. void of
True, the to this have relating question cases involved subdivi (See sions. Housing Authority Church God Ill. however, 500, 504.) theory, protection sub stantial who move into an area rights for those aware and relying on certain restrictions. The absence of a platted subdivision should rights defeat these which were intended the defend obviously ant developer.
This case should remanded for consideration of the ex- refused general hibits and a redetermination of the extent of the plan. KENDALL, Plaintiff-Appellee, THE NA COUNTY OF v. AURORA al., Defendants-Appellants. BANK TRUST NO. 1107 et TIONAL *18 District No. Second 2 — 87—0720 29, 1988. 1, 1988. Rehearing Opinion filed June denied June —