Clark v. McGee

• Decision Date: 20 January 1896
• Citation: 159 Ill. 518,42 N.E. 965
• Parties: CLARK v. McGEE.
• Court: Illinois Supreme Court

159 Ill. 518

42 N.E. 965

CLARK

v.McGEE.

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from circuit court, Cook county; John Gibbons, Judge.

Bill by Melville Clark against John McGee. There was a judgment for defendant, and plaintiff appeals. Affirmed.Felsenthal & D'Ancona, for appellant.

Frank P. Leffingwell, for appellee.

This was a bill in equity brought by Melville Clark in the circuit court of Cook county against John McGee to enjoin the erection of a certain building, and asking for a removal of the building. Upon filing the bill, a temporary injunction was granted. The defendant appeared and put in an answer to the original bill, and entered a motion to dissolve the injunction. The court denied the motion. Thereupon McGee removed the building in process of erection, and commenced the erection of another building. The complainant then filed a supplemental bill, in which it was alleged: That complainant is a resident of Chicago. That on the 18th day of June, 1895, he exhibited his bill of complaint against John McGee and John McInnis, alleging therein that he was the owner in fee simple of certain premises in Chicago, to wit, lot 38, in Walter S. Dray's Cottage Grove Addition to Park Manor, being a subdivision of the west 5 acres of the west 7 1/2 acres of the S. E. 1/4 of the N. W. 1/4 of the N. E. 1/4 of section 27, township 38 N., range 14 E. of the third P. M. That said premises are sitiated at the southwest corner of Seventy-Second street and Rhodes avenue, in Chicago, fronting 44 65/100 feet on Rhodes avenue and 123 87/100 feet on Seventy-Second street, and that there is a 16-foot alley immediately in the rear of and adjoining said lot. That said subdivision was made by Walter S. Dray, the then owner of all property in said subdivision, and the plat thereof was made and acknowledged by Dray as owner, and duly recorded with the recorder of Cook county on the 26th of February, 1890. That the property so subdivided by Dray comprised the entire frontage on Rhodes avenue, on both sides of the street, from Seventy-Second to Seventy-Third street, being 599 30/100 feet on each side thereof, and the lots on the east side of Rhodes avenue were numbered, commencing from Seventy-Second street and running south to Seventy-Third street, as lots 1 to 19, respectively, and those on the west side thereof were numbered, commencing at Seventy-Third street and running north to Seventy-Second street, as lots 20 to 38, respectively. That lots 21 to 37, inclusive, have each a frontage of 30 feet on Rhodes avenue by 123 87/100 feet deep to a 16-foot alley. That lot 20 is at the northwest corner of Seventy-Second street and Rhodes avenue, and has a frontage of 44 65/100 feet on Rhodes avenue by 123 87/100 feet on Seventy-Third street, likewise to said 16-foot alley. That Rhodes avenue is 66 feet wide. That complainant purchased lot 38 from E. A. Taylor on the 4th of April, 1891, for $1,525, and received a deed from Taylor bearing date the 4th of April, 1891, which was recorded in the recorder's office of said Cook county. At the time Dray made his said subdivision, and pursuant to a general scheme or plan adopted by him, and for the benefit of all future owners of lots in said subdivision, Dray conveyed all lots in said subdivision subject to certain restrictions inserted by Dray in the deeds to the different purchasers of lots in said subdivision. That all of the deeds for said lots, except possibly two or three of the lots, in said subdivision, contained said restrictions, and that the purchasers of the lots in which said restrictions are not stated in the deeds bought said lots with actual notice of such restrictions. That the owners of the said two or three lots concerning which no restrictions are contained in the deeds to them had actual notice that the lots so purchased by them were subject to similar conditions and restrictions, as to the kind and cost of buildings, and the amount of frontage such buildings should occupy, as were contained in the deeds where such restrictions were mentioned. That John McGee was the owner of the north one-half of lot 36, and all of lot 37, in Dray's Cottage Grove Addition, which has a frontage of 45 feet on Rhodes avenue, and is immediately south of and adjoining the property so owned by complainant, and that McGee obtained title to lot 37 and the north one-half of lot 36 by deed from Dray and wife dated February 15, 1890, and recorded in recorder's office of said Cook county, in Book 3189, page 189. That the said deed to McGee contained the following expressed conditions, which were a part of the consideration therefor: ‘First. No house shall be erected upon a less portion of the aforesaid premises than a frontage of 45 feet. Second. No house shall be erected upon said premises at a less cost than $2,000, and be built less than 25 feet back from the front line of said premises.’ That in the conveyance of lot 20, in said subdivision, Dray inserted a similar provision to that in the deed to McGee, except that it was provided in such deed that no house should be erected on said lot 20 upon a less portion of the said premises than a frontage of 44 65/100 feet. That in the conveyance of lots 21 to 29, inclusive, and lots 31, 32, 33, and 34, similar restrictions to those contained in said deed to McGee were inserted, except the frontage for each house was to be 30 feet and the cost of each house not less than $2,000. And that in the deed to Taylor from Dray and wife, from whom Taylor derived title, similar restrictions were made, except that the house to be erected on such lot should not be erected on a less frontage than 44 feet, and that such house should not cost less than $2,500. That said property was situated in a good residence district. It was also alleged that since the filing of the original bill McGee tore down the frame shanty erected by him on his property, and had then in process of erection a one-story cottage having an eight-inch brick wall, the same being set on posts about two feet from the ground; that said building would not cost...