Ewertsen v. Gerstenberg

• Decision Date: 21 June 1900
• Parties: EWERTSEN et al. v. GERSTENBERG et al.
• Court: Illinois Supreme Court

186 Ill. 344

57 N.E. 1051

EWERTSEN et al.

v.GERSTENBERG et al.¹

Supreme Court of Illinois.

June 21, 1900.

Appeal from superior court, Cook county; Axel Chytraus, Judge.

Suit by Erich Gerstenberg and others against Ludwig C. Ewertsen and others for injunction. From a decree granting a perpetual injunction, defendants appeal. Reversed.

Hamline, Scott & Lord and George W. Hess, for appellants.

Lackner, Butz & Miller (Francis Lackner, Otto C. Butz, Amos C. Miller, and Major McGregor, of counsel), for appellees.

CARTER, J.

Upon the final hearing of the issues made upon the bill filed by the appellees, the superior court entered a decree in substance as follows: ‘That the defendant Ludwig C. Ewertsen is the owner of lots 1 and 2 in block 1, in Jerome I. Case's subdivision of the north 418 feet of outlot F in Wrightwood, being a subdivision of the S. W. 1/4 of section 28, township 40 N., range 14 E. of the third P. M., in the city of Chicago, county of Cook, and state of Illinois; that complainants are the owners in fee simple of lots 29 and 30 in said block 1, which are unimproved by buildings of any description; that the remaining defendants are interested in the subject-matter of this suit substantially as set forth in the bill of complaint; that defendant Ludwig C. Ewertsen was at the time of the commencement of this suit about to begin the erection of, and since the commencement of this suit has begun and partially erected, a building upon said lots 1 and 2; that a part of said building has been erected upon the east 18.9 feet of said lot 1; that complainants are entitled to an easement for air, light, and prospect in said east 18.9 feet of said lot 1, which easement requires that the east 18.9 feet be reserved and appropriated for a court yard, and shall not be built upon. It is therefore ordered that defendant Ludwig C. Ewertsen and other defendants be restrained from proceeding with the erection of that portion of said building which rests upon said east 18.9 feet of said lot 1. It is further ordered that Ludwig C. Ewertsen remove all that part of said building now resting on said east 18.9 feet of said lot 1, and that the defendant Ludwig C. Ewertsen and all other defendants be perpetually enjoined from building upon said east 18.9 feet of said lot 1.’ The subdivision Wrightwood was made in the year 1860, and the map or plat thereof was recorded in the recorder's office of Cook county on November 26th of that year. Said outlot F was a part of said subdivision, and contained 17.27 acres. On the plat of said outlot and others contained in the said subdivision, lines were drawn 30 feet inside of, and parallel with, the boundary lines of such outlots. The certificate of the owners to said plat of said lands stated that ‘said parties certify that they have mapped and platted the same, as on the above map represented, into outlots, blocks, and lots, with avenues, streets, and courts as above shown, and that all the deeds or other conveyances of any part of said lands and premises heretofore made and hereafter to be made by them, or either of them, referring to any map or plat of the premises above platted, or any part thereof, had and shall have reference to the above plat or map, and to future subdivisions of the same. All the spaces between the front lines of the lots and blocks and the blue lines drawn, respectively, 30 and 50 feet back from the margins of the streets, avenues, and courts, are reserved and appropriated solely for court yards, and are not to be built upon.’ Afterwards, in the same year, the owners of said Wrightwood addition made a partition deed, by which deed Timothy Wright, one of the part owners, became the sole owner in fee simple of said outlot F. Reference was made to said map or plat of Wrightwood in said deed, and it was declared to be subject to the provisions of said plat, and to the certificates thereto, regulating courts and court yards and the use thereof. In 1891 Jerome I. Case, then being the owner of the north 418 feet of said outlot F, made a subdivision of the same into lots, blocks, streets, and alleys, and made and recorded a plat thereof, with a line drawn thereon marked ‘Building Line,’ 30 feet within and from the outside or street lines of such lots, in the same manner and at the same places as indicated upon the plat of said outlot F as shown in the original addition. The following plat shows most of the east half of block 1 of said Case's subdivision, the building line, the location of buildings on certain lots, and the building of ewertsen, the construction of which was of Ewertsen, the construction of which was encroachments which have been made upon the building line, and upon the space between such line and the street which had been set apart for a court yard, on the west side of Orchard street, and a part of Wrightwood avenue.

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The defendant Ewertsen, the owner of lots 1 and 2, and the complainants, the owners of lots 29 and 30, as well as other owners of lots in said block 1, derived their titles by mesne conveyances from Jerome I. Case, who derived his title by mesne conveyances from Timothy Wright. The deeds in the chain of title to complainants' said lots provided, in substance, ‘that a space of 30 feet in depth along the east line of said lots 29 and 30, and fronting on Orchard street, shall never be built upon or in any manner obstructed or incumbered by buildings of any description, but shall be forever left and reserved an open area or space, in accordance with the lines shown upon a plat of the subdivision,’ etc.; referring to said original plat. Some of the deeds to the other lots, from 23 to 34, inclusive, contained similar provisions, but no such provision, nor any reference to any building line, was contained in any deed in the chain of Ewertsen's title to lots 1 and 2, except the provisions in said partition deed and in said plats and their certificates, and except what may be properly implied from references in other deeds made to the plats; and the first contention of appellants is that said restriction as to the building line and the open space between that line and the street does not apply to said lots 1 and 2, and that Ewertsen had the lawful right to build to the street line. The building Ewertsen began to construct was to be an apartment building, three stories high, of brick and stone, fronting on Orchard street, 4 feet from the street line, and extending back upon the rear ends of said lots 1 and 2. As shown by the above plat, it extended over the building line 23 feet. If it were put back to the building line, or even to a line 18.9 feet from the street, as decreed by the court below, there would not be sufficient depth to the two lots east and west for the building as planned. That fact would be immaterial, however, if the alleged restriction is binding upon Ewertsen, as the owner of said lots, or constitutes an easement in said lots in favor of the other lot owners. But was any such restriction in the use of said lots 1 and 2 imposed or created by said plats and partition deed, and reference thereto in the deeds in Ewertsen's chain of title, as alleged by the complainants? We are of the opinion that there was. As said, however, in Hutchinson v. Ulrich, 145 Ill. 336, 34 N. E. 556,21 L. R. A. 391: ‘Where real property is conveyed in fee, restrictions in the use are not favored; but, where the intention of the parties is clear in the creation of restrictions and limitations upon the use of a grantee, courts will enforce the same.’ And we there further said: ‘All doubts must be resolved in favor of natural rights, and against restrictions thereon. * * * In the construction of deeds containing restrictions and prohibitions as to the use of property by a grantee, all doubts should, as a general rule, be resolved in favor of a free use of property, and against restrictions.’

It is not necessary to consider the point made by the appellants, that the original plat, having been acknowledged by an attorney in fact and not by the owners, could not, under the law as it then was, create any legal restrictions upon the use of the property; for we are satisfied from the evidence that this plat was referred to and made a part of the partition deed and subsequent conveyances, and has been constantly recognized by all the lot owners as a common source of title, and that Ewertsen had notice of it and of said restrictions, and is now bound by them, unless these restrictions have ceased to exist, or are no longer enforceable against him or his said lots, in equity, for reasons hereinafter stated. His property...