Finch v. Theiss

• Decision Date: 17 February 1915
• Docket Number: No. 9814.,9814.
• Citation: 267 Ill. 65,107 N.E. 898
• Parties: FINCH et al. v. THEISS.
• Court: Illinois Supreme Court

267 Ill. 65

107 N.E. 898

FINCH et al.

v.THEISS.

No. 9814.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Circuit Court, Kane County; C. F. Irwin, Judge.

Suit by Edward C. Finch and another against Emma B. Theiss and others.From so much of the decree as enjoined the defendant Theiss from closing the windows in a party wall, and permitted the complainants to maintain the window sills in their then condition, the defendant Theiss appeals; and complainants by cross-errors question that part of the decree requiring the removal of a certain stairway and shutters and requiring the payment of damages.Decree affirmed as against the cross-errors, but in all other respects reversed and rendered for defendant Theiss.Frank G. Plain and Albert J. Kelley, both of Aurora (George R. Warner, of Aurora, of counsel), for appellant.

J. C. Murphy and E. L. Lyon, both of Aurora, for appellees.

FARMER, J.

Appellees, Edward C. Finch and William H. McCullouch, a copartnership, as complainants, filed their bill in the circuit court of Kane county against Emma B. Theiss, Otto J. Theiss, and Jacob Salfisburg, defendants, for an injunction restraining the said defendants, or either of them, from closing certain openings in a party wall between lots owned by the respective parties.This litigation grew out of the following state of facts:

Complainants were the owners of a vacant lot at the northeast corner of Benton and La Salle streets, in the city of Aurora, Ill. DefendantEmma J. Theiss(who was then Emma J. Brunemeyer, but will hereafter be referred to as Mrs. Theiss) owned a lot adjoining complainants' lot on the north.That part of her lot adjoining complainants' lot was also vacant at the time the agreement hereafter referred to was entered into.There was a private alley from Benton street north over the rear of complainants' lot, which afforded access from Benton street to Mrs. Theiss' lot, the north part of which she had improved and was using for an automobile garage.She desired to put up a onestory building on that part of her lot adjoining complainants' lot, and on November 20, 1909, she and complainants entered into a party wall agreement, by which Mrs. Theiss agreed to construct the wall at her own expense, one-half on each side of the lot line, in consideration of complainants allowing her the use of the alley over the rear of their lot for access to her building by teams and automobiles.When completed, one-half of the wall was to be the property of the complainants and one-half the property of Mrs. Theiss.The agreement further provided that each of the owners who might at any future time desire to build additional stories should have the right to continue the party wall as high as desired; each party to pay one-half the cost of the proportion he might use at any time.Pursuant to the agreement, Mrs. Theiss constructed the wall proposed on that part of her lot adjoining complainants, by the erection of a one-story building.The party wall built by her was solid throughout, with no openings, and was 18 inches thick, one-half on the property of each of the parties.Shortly afterwards complainants constructed a two-story building on their lot, using the party wall built by Mrs. Theiss for the first story and building on it a second-story party wall 12 inches thick.Instead of placing the center of this second-story party wall on the line, it was built with the north side flush with the wall built by Mrs. Theiss, so that 3 inches more of the wall was on Mr. Theiss' side of the line than was on the complainants' side.Complainants also constructed seven windows in the second-story wall overlooking the roof of Mrs. Theiss' building.Later, complainants erected a third story to their building by continuing the party wall on up, of the same thickness as the second-story party wall.In the rear of complainants' building they constructed a stairway of iron and wood, running from the third story to the ground, and which projected out into the alley about 3 1/2 feet.They also built a coal bin at the foot of the stairway, about 5 feet high, 6 feet long, and 3 1/2 feet wide.These structures interfered with the use of the alley for access by Mrs. Theiss to her building.Complainants constructed two windows in the third-story party wall.

In the latter part of 1912 Mrs. Theiss erected a second and third story on her building.In doing so she left an air shaft or opening next to the party wall, extending from the first story up through the roof of the top story, for the purposes of light and ventilation.This air shaft is about 12 feet square.While Mrs. Theiss was having her second and third stories built, the complainants closed six of the seven windows they had made in the second-story wall, but left one, which opened into the air shaft.They constructed two more windows in the second story, opening into the air shaft, and also two windows opening into the air shaft in the third story.These windows were constructed with stone sills, extending into the air shaft about 2 inches.Iron shutters for the windows on the third floor were hung upon Mrs. Theiss' side of the wall; the hinges and shutters projecting out into the air shaft, the latter about 18 inches.Mrs. Theiss occupied the upper stories of her building, upon their completion, as a residence.The second story of the complainants' building was used as a factory for manufacturing wrappers, and the third floor as a foundry.Mrs. Theiss complained of the noise and bad language coming from the complainants' building through the openings made for the windows in the party wall, and on the 7th of March, 1913, made a demand, in writing, upon complainants to close said windows, remove the window sills, shutters, and hinges, and the stairway and obstructions in the alley at the rear of the building.Thereupon complainants filed their bill in this case to enjoin the defendant from closing up the windows opening from the building into the air shaft, and from doing any act to prevent the free use by complainants of the windows for the purpose of light and ventilation.

The original bill alleged that the windows opening into the air shaft were constructed by complainants pursuant to a verbal agreement between them and Mrs. Theiss.Mrs. Theiss answered the bill, and the other defendants were defaulted.In her answer Mrs. Theiss denies that there was ever any agreement that the complainants should construct windows in the party wall, and denies that any considerationever moved to her from complainants for the privilege of constructing said windows.Mrs. Theiss also filed a cross-bill, in which she alleged that the wall contemplated by the party wall agreement was to be a solid wall throughout its length and height; that without her consent, and contrary to her wishes, complainants had constructed windows in it and had encroached upon her property, by the window sills, shutters, and the hinges upon which the shutters were hung extending out over her property; also that the party wall for the second and third stories was so constructed by complainants that she was deprived of the use of 3 inches of her property.The cross-bill further alleged that the stairway and other obstructions at the rear of complainants' property were in violation of her right to the use of said alley in accordance with the terms of the agreement between the parties.The cross-bill prayed that the original complainants be required to close up the windows and restore the party wall to a solid wall, remove the window sills, hinges, and shutters, also the stairway in the alley, and to pay cross-complainant damages for the use of 3 inches of her second and third stories.

Answer and replication were filed to the cross-bill, and the cause was heard before the chancellor on both the original and cross-bills.There was no evidence to support the allegations of the original bill that Mrs. Theiss had made a verbal agreement with complainants by which they were authorized to place windows in the party wall, and complainants filed an amended bill, which was substantially like the original bill, except that it did not allege the windows were constructed by virtue of any agreement, but alleged the windows were placed in the wall with the knowledge, approval, acquiescence, and consent of Mrs. Theiss and under circumstances which now estop her from insisting that they be closed.

The decree found that the windows were constructed with the knowledge, consent, and acquiescence of Mrs. Theiss, and she was estopped from objecting to their remainingin the wall....