Cuneo Press, Inc. v. Warshawsky & Co.

• Decision Date: 01 February 1960
• Docket Number: Gen. No. 47764
• Citation: 24 Ill.App.2d 163,164 N.E.2d 258
• Parties: CUNEO PRESS, INC., a corporation, Appellant, v. WARSHAWSKY & COMPANY, a corporation, and R. E. L. Building Corporation, a corporation, Appellees.
• Court: United States Appellate Court of Illinois

Page 258

164 N.E.2d 258

24 Ill.App.2d 163

CUNEO PRESS, INC., a corporation, Appellant, v. WARSHAWSKY & COMPANY, a corporation, and R. E. L. Building

Corporation, a corporation, Appellees.

Gen. No. 47764.

Appellate Court of Illinois, First District, First Division.

Feb. 1, 1960.

Rothschild, Hart, Stevens & Barry, Chicago, John Paul Stevens, William G. Myers, Chicago, of counsel, for appellant.

Dwight McKay, Chicago, Sidney, Z. Karasik, Chicago, of counsel, for appellees.

McCORMICK, Justice.

This appeal is taken from a judgment of the Circuit Court of Cook County overruling objections to and approving a master's report, and entering a decree dismissing the cause for want of equity.

The Cuneo Press, Inc., hereafter referred to as 'Cuneo,' had brought an action against Warshawsky & Company and R. E. L. Building Corporation, hereafter referred to as defendants, for an injunction seeking to restrain defendant Warshawsky from maintaining a 'wrecking plant and junk yard' on the premises owned by the R. E. L. Building Corporation and leased by Warshawsky, and to restrain defendant R. E. L. Building Corporation from authorizing any person to conduct such a business on the property in question at any time in the future.

From the record it appears that the parties occupy property in the City of Chicago on opposite sides of Cermak Road (22nd Street) between Canal Street on the east and the Chicago River on the west. Cermak Road runs east and west. Canal Street runs north and south, as does the Chicago River at this point. Between Canal Street and the river, Cermak Road is intersected only by Grove Street, which runs southwesterly and northeasterly. Grove Street also intersects Canal Street immediately to the north of Cermak Road. The vicinity is part of an industrial or manufacturing area. Both Cermak Road and Canal Street are heavily traveled arterial streets accommodating trucks, passenger automobiles and bus lines of the Chicago Transit Authority.

Cuneo owns, and at all material times has owned, property facing on and extending southerly from the south side of Cermak Road. This property (hereinafter called the 'Cuneo property') is bounded on the east by Canal Street and on the west by the river. It is intersected and divided by Grove Street. The Cuneo property consists of approximately 400,000 square feet, and on this property Cuneo operates a printing and binding establishment consisting of five separate buildings. It employs 2,350 to 2,500 persons, including factory and office workers. Many of its employees are women. Although Cuneo has other plants across the country, its only photographic and art studios are at this location. It does art work, engraving, etching and editorial work on the premises. The customers visiting the Cuneo property are publishers, advertising people and others interested in the reproduction of literary and art material.

In 1949 the defendant R. E. L. Building Corporation leased to Warshawsky property known as 456 West Cermak Road, which property faces on and extends northerly from the north side of Cermak Road. This property (hereafter referred to as the 'Warshawsky property') is bounded on the west by the river, and on the east the south 260 feet are bounded by the west line of Grove Street, and the north 80 feet are bounded by Canal Street. The Warshawsky property, consisting of approximately 62,000 square feet, is directly across Cermak Road from the Cuneo property. The southeast corner of the Warshawsky property is improved with a brick building which extends 37 feet along Cermak Road and encroaches thereon. The only other improvements on the property are weather-beaten wooden frame sheds. The balance of the property is an open yard.

Prior to 1949 the Warshawsky property was used as a lumber yard with comparatively small quantities of lumber neatly stacked in the open portion of the property. In its operation on the property in question Warshawsky purchases old automobiles and trucks, wrecks and dismantles them, strips them of whatever parts it deems salable, stores and sells such parts, and disposes of the remaining portions of the automobiles to steel mills or brokers in ferrous metals, non-ferrous metals, rubber and glass. Warshawsky buys individual autos and trucks which individual persons bring in for sale. The cars and trucks thus purchased are then stored until ready to be wrecked. The next step in the Warshawsky operation is the wrecking of the vehicles. Cars are lifted up on a hoist and dismantled. Such parts as have resale value are removed. This includes hubcaps, wheels, bumper guards, tires, radiators, batteries and any and all parts and accessories which might be sold. The removed parts are stored on the premises. When this salvaging operation is complete, the balance of the car, including the frame and body stock, is sent over to the shears to be cut up. The shells or hulls of the cars, together with upholstery and any other part of the car which cannot otherwise be disposed of, are then burned by smoldering fires at ground level on the open portion of the premises. The parts and accessories which Warshawsky is able to salvage and which are stored on the premises are offered for sale to anyone who might want them. Individual parts are sold to individual persons. Some of the parts are sold from the premises in question. Others are sold from another outlet maintained by Warshawsky at 1900 South State Street.

When the non-salvageable portions of the cars are cut up into the size required by steel mills, the old iron and other scrap metals are thrown into piles in the open yard on the Warshawsky property. These piles are higher than the eight or nine foot fence on the property. Warshawsky sells its ferrous metals to steel mills or brokers dealing in scrap metals. Its non-ferrous metals, such as batteries, radiators, wiring, door handles and ornamental pieces, are sold to non-ferrous dealers. Warshawsky also sells tires, seats and glass.

North of Cermak Road there is a switch track which is within the right of way of Grove Street and is located practically adjacent to and parallel to the line of the Warshawsky property. Gondola cars are set on this last switch track in front of the Warshawsky property and these cars are loaded over the fence with scrap iron by a crane. The portion of Grove Street lying north of Cermak Road is unpaved and has no sidewalks. That portion of Grove Street lying south of Cermak Road and running between Cuneo buildings is paved. The part of this portion of Grove Street lying westerly of the 'lead' track of the railroad and adjacent to a Cuneo building has a gate across its entrance at Cermak Road and a guardhouse south of the gate manned by a Cuneo employee. On the portion of Grove Street adjacent to the Cuneo buildings, trucks are parked for loading or unloading in connection with Cuneo's operation. In that portion of Grove Street south of the Cuneo gate automobiles are parked. On that portion of Grove Street adjacent to Warshawsky, trucks are parked in connection with Warshawsky's operation. In connection with both Cuneo's and Warshawsky's operations the trucks are parked either parallel or diagonal to the street lines and at times block the street.

Cuneo spends thousands of dollars for paving, maintaining and cleaning Grove Street (near its plant), cleaning Cermak Road, the front of its plant and the river bank. Warshawsky drops pieces of scrap material during the process of loading gondola cars and there is no evidence that it makes any effort to clean up its premises or surroundings. In addition, its river wall is not maintained in good repair.

The master found that the ordinances of the City of Chicago applicable to junk dealers and junk yards are not applicable to the Warshawsky operation which is not the operation of a junk yard; that Warshawsky's operation is a lawful and useful business located in an area to which it is compatible; and that Cuneo has not established any actual or substantial or special damage to it caused by Warshawsky.

Cuneo's complaint is in two counts. The second count alleged that the defendants maintained a common-law nuisance. The allegations in this count have been abandoned by the plaintiff in this court. The first count is that the operation in question is a junk yard subject to the Chicago ordinances regulating junk yards; that those ordinances prohibited the location of a junk yard on the property in question and that the plaintiff has sustained special damages.

In order to recover the plaintiff must prove two propositions: (1) that Warshawsky's operation was in violation of the ordinances of the City of Chicago, and (2) that Cuneo suffered special and unique damages to its property thereby. The master found against Cuneo on both propositions.

A great deal of the argument before this court is based upon whether or not the Warshawsky yard is a junk yard within the meaning of the Chicago ordinances regulating junk yards (Municipal Code of Chicago chapter 143, sections 143-1 et seq.). We will assume, without deciding, that the master's findings with reference to the first proposition are erroneous and consider whether or not Cuneo has proved special damages of the character which would entitle it to injunctional relief.

Warshawsky has been conducting this operation on its property for more than ten years. There is nothing in the record to indicate that its operation has been conducted in any way different than at the present time. During the ten years Warshawsky improved the property by erecting a two-story brick building, one floor being used for storage and a washroom, and the second floor as an apartment for rental purposes, and also a one-story frame shed extending north from the brick building about 120 feet, together with an open steel fence facing Grove Street.

The law in Illinois with reference to the right of a private person to obtain the aid of equity in enjoining the...