Dick v. Goldberg

• Decision Date: 09 December 1920
• Docket Number: No. 13326.,13326.
• Parties: DICK et al. v. GOLDBERG et al.
• Court: Illinois Supreme Court

295 Ill. 86

128 N.E. 723

DICK et al.

v.GOLDBERG et al.

No. 13326.

Supreme Court of Illinois.

Oct. 23, 1920.

Rehearing Denied Dec. 9, 1920.

Bill by Elmer E. Dick and others against Daniel Goldberg and others. Decree of dismissal, and complainants appeal.

Affirmed.

Appeal from Superior Court, Cook County; Charles M. Foell, judge.

Donald L. Morrill, Angus Roy Shannon, and Nahum Morrill, all of Chicago, for appellants.

Sonnenschein, Berkson, Lautmann & Levinson, of Chicago, Charles L. Bartlett, of Quincy, and Robert Humphrey, of Lincoln, for appellees.

DUNN, J.

Elmer E. Dick, William F. Healy, Eugene M. Hoyne, and Ida Tennes filed a bill in the circuit court of Cook county against Daniel Goldberg, Kate Goldberg, Albert Auwaerter, and others praying for an injunction restraining the defendants from constructing an apartment hotel upon lots 11 and 12 of block 6, in Cochran's Second addition to Edgewater, in Cook county, at the northwest corner of Granville and Kenmore avenues, which the defendants the Goldbergs and Auwaerter owned as tenants in common. The bill was answered, the cause was heard upon oral and documentary evidence, a decree was entered dismissing the bill for want of equity, and the complainants have appealed.

The appellants are the owners in severalty of different lots in Cochran's Second addition to Edgewater. That addition was laid out by a plat recorded on December 21, 1888, containing no restrictions as to buildings or the use of any of the lots, and no agreement for such restrictions is shown unless such agreement is to be inferred from the deeds by which the lots were conveyed or the advertisementsand representations under which they were sold. The appellants and the appellees acquired title to the lots which they respectively own, through mesne conveyances from the original proprietors. Each of the conveyances from the original proprietors contains the following restrictions, differing only as to the cost of the buildings which might be constructed:

‘It is hereby expressly covenanted and agreed that neither said party of the second part, nor her heirs, executors, administrators, or assigns, shall erect any fence, enclosure, or obstruction to view on said lots within thirty feet of the front or side street line of said lots for a period of ten years from the date hereof, and shall not build any wall of any building erected on said lots within said thirty feet of the front or side street line of said lots for a period of twenty years from the date hereof, without the written consent of said party of the first part.

‘It is also hereby expressly covenanted and agreed that neither said party of the second part, nor her heirs, executors, administrators, or assigns, shall build, or cause to be built, on said lots any building or structure (except a stable, which shall be built on the alley line of said lots) the fair, actual cost of which shall be less than $6,500, for a period of twenty years from this date, without the written consent of the said party of the first part.

‘It is hereby expressly covenanted and agreed that neither said party of the second part, nor her heirs, executors, administrators, or assigns, shall build, or cause to be built, on said lot any building known as a flat or tenement building, hereby covenanting to erect thereon only a single private dwelling house (excepting the stable as aforesaid) for a period of twenty years from this date.

‘No spirituous or malt liquors shall be sold on any portion of the herein granted premises at any time.’

The deed from the original owner to the grantor of the appellees was dated January 4, 1899, so that when they acquiredtitle on May 21, 1919, the limitation had expired as to all the restrictions except that relating to the sale of spirituous or malt liquors. All the lots are in that part of Cochran's Second addition to Edgewater fronting upon Kenmore avenue and Sheridan road between Thorndale avenue and Devon avenue, and it is alleged in the bill that all those lots were sold by the original proprietors of the subdivision subject to restrictions of the same character, tenor, and effect as the restrictions just mentioned, differing only as to the dates of creation and expiration and the limitation as to the cost of the improvements; that the original restrictions upon most of the lots have not expired according to their terms; that the original proprietors of the subdivision adopted a general plan for the improvement of the territory on Sheridan road and Kenmore avenue between Thorndale and Devon avenues, which provided, among other things that no flat building or apartment house or tenement house, or structure other than single dwelling houses, each to be occupied by one family, should be constructed in such territory, but that the same should be restricted exclusively to dwelling houses such as are usually occupied by one family, and that each lot should have a building line 30 feet from the front or side street line; that John Lewis Cochran and others associated with him were the agents to sell the lots, and they advertised the sale extensively, and represented to prospective purchasers that the territory was restricted to residences and single dwelling houses; that flat buildings, apartment buildings, tenement houses, hotels, and structures of a character other than single dwelling houses could not be erected in the subdivision, and that the complainants relied upon such representations, which were continuing in character, and were made to protect the general public in their purchase of the parcels of real estate; that these restrictions have been observed and the territory has been maintained as an exclusive residence section, and on that account has been rendered especially attractive to personsdesiring to establish and maintain family homes. It is further alleged that the defendants propose to erect upon their lots, and are now erecting, an apartment hotel fronting on Kenmore avenue, practically covering the entire area of their lots, which structure violates the restriction imposed upon their lots ‘by reason of the character of the said building so being erected and its proximity to the street line on Kenmore and Granville avenues.’

Phinias P. Cahana testified that he was concerned with the sale of this property for Cochran and the other original proprietors of the addition; that he made the sale of the property owned by the appellees to Fred K. Gardner, and made a great many sales of other parcels. He sold the lot now owned by Elmer E. Dick to John W. Means, and told him that the property was restricted as to building line, character and value of buildings, and he made the same statement to all other purchasers he sold to and made that a great point. It helped to sell the property. They would not have bought if those restrictions had not been made. He had a similar conversation with Gardner, making the same statements. He told purchasers very particularly that flat buildings could not be erected upon the property, and it was not expected that such buildings would ever be erected there, and that was done in every case. The property was widely advertised in all the daily newspapers. Means also testified that the agent told him that in the future no flat buildings could be located on that property, and he relied upon that representation in making the purchase, and those representations led him to make the purchase at the price he did.

The appellants' argument is based upon two propositions: (1) That the restriction against the erection of flat buildings and tenements is perpetual, with an affirmative covenant that for 20 years...