Boland v. Walters

• Decision Date: 04 December 1931
• Docket Number: No. 20824.,20824.
• Citation: 346 Ill. 184,178 N.E. 359
• Court: Illinois Supreme Court
• Parties: BOLAND v. WALTERS.

346 Ill. 184

178 N.E. 359

BOLAND

v.WALTERS.

No. 20824.

Supreme Court of Illinois.

Oct. 23, 1931.

Rehearing Denied Dec. 4, 1931.

Suit by Anna M. Boland against Rollo H. Walters.Decree for complainant, and defendant appeals.

Reversed and remanded, with directions.Appeal from the Circuit Court, Macon County; James S. baldwin, judge.

Deck, Jack & Boggess, of Decatur, for appellant.

McDavid, Monroe & Mann, of Decatur, for appellee.

DE YOUNG, J.

Anna M. Boland filed a bill of complaint in the circuit court of Macon county to restrain Rollo H. Walters from obstructing a private driveway between their respective residences.An answer and a replication were filed, and the cause was referred to a special master in chancery who reported the evidence and recommended a decree in conformity with the prayer of the bill.Such a decree was entered, and the defendant prosecutes this appeal.

Rollo H. Walters, the appellant, owns lot 16 and the east 15 feet of lot 15, in block 3, in Starr & Mills' First Addition to the city of Decatur.The parcel of ground is situated at the northwest corner of Lincoln avenue and Silas street, and has a south frontage on the former street of 55 feet and a depth along the west line of the latter of 150 feet.An eight-room frame house stands about 30 feet north and 12 feet east of the south and west boundaries of the ground respectively, and the appellant has occupied the premises as his homestead since 1905.

On October 20, 1905, John Boland acquired the title to the east 15 feet of lot 14 and the west 25 feet of lot 15 in the same block and subdivision.This parcel of ground has a south frontage on Lincoln avenue of 40 feet, a depth of 150 feet, and adjoins the property of the appellant on the west.A public alley runs east and west at the rear of the lots of the parties to the suit.

The parcel of land acquired by Boland was unimproved when he purchased it.He first erected a barn at the northwest corner of the lot.Afterwards he conferred with the appellant concerning a private driveway for their common use, and by mutual agreement such a way was laid out, the center of which longitudinally coincided substantially with the line dividing their properties.Wooden curbs for the driveway were first constructed, but later they were replaced by a concrete curb on the east and a concrete and brick curb on the west side; each owner defraying the expense of the new curb on his property.

In the year 1906, Boland built a two-story frame dwelling house upon his ground.The house consists of seven rooms, bathroom, and basement, and, exclusive of a bay window projecting 2 feet 5 inches to the east, is 26 feet 10 inches wide and 46 feet 4 inches long.The southeast corner of the house is 34 feet north of the street line and 5 feet 9 1/2 inches west of the east boundary of the lot.Immediately south of the bay window and near the center of the east side of the house is a door through which entrance is gained to the house from a walk running to the street and from the driveway 2 feet to the east.In the foundation wall, near the northeast corner of the house, is a window through which coal is delivered to the basement from the driveway.The furnace is located in the center of the north end of the basement.

Boland died testate in October, 1916, and the appellee, his widow, became the owner of the property as his devisee.Shortly thereafter, she converted the barn at the northwest corner of the lot into a two-car garage.Automobiles reach the garage over the common driveway and enter it through doors in the east wall.

The evidence introduced by the appellee shows that Boland first proposed to locate his house near the east line of his lot with a driveway west of the house from which access might be gained to the house through a door in the west wall; that after a conference between Boland and the appellant, it was agreed that the former's house should be built nearer the west line of his lot to permit the location of a common driveway between the two houses and to afford each house more light and air; that Boland accordingly built his house several feet farther west, and that he modified its plan by placing an outside door in the east instead of the west wall and by making the interior changes which entrance from the driveway on the east rather than the west necessitated.

The evidence of the appellant shows that Boland proposed a common driveway and suggested that deeds be executed to give effect to his plan; that the appellant objected to making deeds, but entered into a verbal agreement with Boland for the location and improvement of the driveway; that, according to the appellant's understanding of the agreement, Boland was to build his house 7 feet west of the east line of his lot; that, shortly after Boland began the erection of his house, the appellant informed him that he was building closer to...