Gerstley v. Globe Wernicke Co.

• Decision Date: 08 October 1930
• Docket Number: No. 19539.,19539.
• Citation: 172 N.E. 829,340 Ill. 270
• Parties: GERSTLEY et al. v. GLOBE WERNICKE CO.
• Court: Illinois Supreme Court

340 Ill. 270

172 N.E. 829

GERSTLEY et al.

v.GLOBE WERNICKE CO.

No. 19539.

Supreme Court of Illinois.

June 20, 1930.

Rehearing Denied Oct. 8, 1930.

Commissioner's Opinion.

Suit by Jennie R. Gerstley and others against the Globe Wernicke Company. From a decree dismissing the bill, complainants appeal.

Reversed and remanded with directions.Appeal from Superior Court, Cook County; Denis E. Sullivan, judge.

Judah, Willard, Wolf & Reichmann and Poppenhusen, Johnston, Thompson & Cole, all of Chicago (Floyd E. Thompson and Arthur M. Cox, both of Chicago, of counsel), for appellants.

Cutting, Moore & Sidley, of Chicago (Charles S. Cutting, of Chicago, of counsel), for appellee.

EDMUNDS, C.

The Globe Wernicke Company, a corporation, appellee, as lessee of the premises hereinafter described, constructed across the alley separating its buildings certain bridges in the form of a solid structure, which had the effect of cutting off light and air from the building of appellants on an adjoining lot. Appellants filed a bill in the superior court of Cook county to enjoin appellee and its lessors from maintaining these bridges. The master to whom the cause was referred recommended a decree compelling the removal of the structure complained of, with the right to replace it with a structure of the same kind and character as certain bridges formerly in the same place. The chancellor entered a decree sustaining exceptions to the master's report and dismissing the bill for want of equity. This appeal followed.

A plat showing the lots and alley here involved was made and acknowledged by an attorney in fact in 1847 and filed for record that same year. Succeeding conveyances were made with reference to this plat. The following diagram will indicate the location of the property in its relation to the alleys and streets then platted and to the structure complained of by appellants:

Image 1 (2.54" X 2.57") Available for Offline Print

Appellants are the owners of lot 1, upon which there is a five-story brick building. Lots 2, 3, 4, 14, 15, and 16 constitute the property of which appellee is lessee. On lots 2, 3, and 4 there is a six-story brick and stone building, and there is a six-story brick and stone building on lots 14, 15, and 16. The structure complained of connects the two buildings of appellee, crossing the alley indicated by the diagram. This alley is 14 feet wide except at its juncture with the north and south alley indicated, where it widens to 26 feet. The north and south alley is 11 1/2 feet wide. The building on the west side of the north and south alley and opposite the 14-foot alley is four stories in height. The structure complained of lies within the vertical planes previously occupied by open platform bridges connecting the third and fifth floors of the buildings occupied by appellee, authorized by city ordinance in 1882, and an inclosed bridge connecting the sixth floors. It runs from a point 16 1/2 feet above the surface of the alley to a point 3 or 4 feet above the roof of appellee's six-story buildings and is surmounted by a water tank of 6,000-gallon capacity. The three buildings directly involved were erected about 1882. The one on lot 1 is 20 feet wide and 189 feet long. It was erected with two windows on each of its five floors at the point where it abuts upon the 14-foot alley. The windows on the first floor are each 12 feet 6 inches high and 4 feet 2 inches wide. Those on the second, third, fourth, and fifth floors are approximately 8 feet in height and 4 1/2 feet in width. These are the only windows in appellants' building, with the exception of those in the front facing Monroe street and the ones facing the main alley in the rear, and, except for such front and rear windows, constitute the building's only available natural light and ventilation. Prior to the erection of the structure complained of, there was no obstruction to the free passage of light and air into the building through the ten windows facing the 14-foot alley except the two open platform and the one inclosed bridge above mentioned; this old inclosed bridge interfering but slightly because it was above the roof of appellant's building. Appellants submitted testimony to show that, prior to the erection of the structure complained of, men employed in their building were able to work near the windows abutting upon the 14-foot alley without artificial light for a substantial portion of each day; that in the winter no artificial light was needed between noon and 2 p. m., and in the summer none was needed between 11 a. m. and 4 p. m.; that in the summer the direct rays of the sun shone into these windows between 1 p. m. [340 Ill. 275]and 3 p. m.; and that before the solid structure was erected there was a free circulation of air through such windows. These windows now open into a well, approximately 14 feet square. The direct rays of the sun never enter them, and at no time of day is there sufficient daylight to enable the employees in the building to perform their duties without the aid of artificial light. The master found that the ventilation is interfered with and that the light in appellants' building was reduced from 50 to 75 per cent. This finding is amply warranted by the evidence.

The three old bridges above referred to were removed by appellee shortly after it took possession of the premises in 1920 and erection of the present structure was then commenced. At this time appellant Jennie Gerstely, owner of the life estate in lot 1, was not in Chicago. On June 9, 1920, before much work had been done, appellant Jesse Gerstley, one of the remaindermen, learning of appellee's activity from the manager of the tenant in possession of appellants' property,went to the scene and made demand upon those doing the work the activities be stopped. That same day he employed an attorney, who went with him to the City Hall to enter complaint. At the City Hall it was found that a permit to erect the structure had been obtained upon the representation that the passageway over which it was to be erected was private. Upon finding that the alley was shown by the plats in the city map department to be public, the city authorities ordered the work to be stopped. This action was reported by George L. Miller, the architect's superintendent, to Orsanus H. Bardwell, appellee's manager, who suggested to Miller that the work be proceeded with without a permit and that as much as possible be accomplished before further notice was given or protest made. Gerstley, who had made several other visits to the premises after operations were thus stopped and found nothing in progress, went there about a week after his first visit and found fifteen or twenty men at work. He thereupon went to the City Hall again and visited the corporation counsel in person. The latter assured Gerstley that he would take care of the matter for him. The work was again stopped, and nothing further was done for about six weeks. During this time appellee took steps to obtain an ordinance from the city council granting permission to erect the structure. While this ordinance was pending, work was again resumed, and Gerstley made many visits to the office of the corporation counsel to protest. In the course of these visits he was repeatedly assured by the acting first assistant corporation counsel that the delay did not prejudice appellants' rights. Gerstley also appeared before the committee of the city council and protested the passage of the ordinance. In November he went to Bardwell, who refused to accede to his protest but said that if Gerstley would delay taking any action he would present the matter to the president of appellee company and communicate with Gerstley later. Gerstley heard nothing further from Bardwell and shortly after became ill and was confined to his bed for several weeks. On April 11, 1921, the city council passed an ordinance authorizing appellee to construct and maintain the bridge ‘over and across the east and west fourteen-foot public alley,’ providing that such authorization should cease ten years from July 29, 1920, or might be revoked at any time prior thereto by the mayor, and that the ordinance should also be subject to amendment or repeal at any time without appellee's consent. In accordance with the further terms of the ordinance, appellee filed a written acceptance thereof and agreed to pay the city of Chicago compensation in the sum of $500 per annum. In May, 1921, learning that this ordinance had been passed, appellants retained a solicitor and caused the bill in the present proceeding to be filed.

At the outset it is well to dispose of appellee's argument based upon the contention that because the plat here involvedwas acknowledged by an attorney in fact there was only a common-law dedication, leaving in the abutting owners title in fee to the alley. Appellee insists that under such a state of facts it can make any use of the alley which does not interfere with the enjoyment of the public easement; that the city, even without an enabling act, could allow any use of the alley not inconsistent with the public object of its creation; and that, consequently, erection of the structure complained of could not be, from a public standpoint at least, unlawful. The facts will not support such conclusion. The public is entitled to the uninterrupted, unimpeded, and unobstructed use of every portion and part of public streets and alleys, not only that they may use the ground or foundation to travel upon (which right is coextensive with every inch or foot of it), but that they may enjoy the air, light, and rainfall as well upon every portion of it. People v. Harris, 203 Ill. 272, 67 N. E. 785,96 Am. St. Rep. 304;People v. Corn Products Co., 286 Ill. 226, 121 N. E. 574; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91, 50 N. E. 256,40 L. R. A. 621;Field v. Barling, 149 Ill. 556, 37 N. E. 850,24 L. R. A. 406, 41 Am. St. Rep. 311;Barnett v....