Guest v. Reynolds

• Decision Date: 30 September 1873
• Citation: Guest v. Reynolds, 68 Ill. 478, 1873 WL 8384, 18 Am.Rep. 570 (Ill. 1873)
• Parties: ALFRED GUEST et al.v.WILLIAM H. REYNOLDS.
• Court: Illinois Supreme Court

68 Ill. 478

1873 WL 8384 (Ill.)

18 Am.Rep. 570

ALFRED GUEST et al.

v.WILLIAM H. REYNOLDS.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. SLEEPER & WHITON, for the appellants.Mr. A. GARRISON, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case, brought to the circuit court of Cook county, to recover damages for an alleged obstruction, by defendants, of the free use of the light and air passing laterally over the premises of defendants to plaintiff's premises.

The declaration contains two counts, in substance, as follows: Plaintiff, after averring his residence on a particular lot, 73 South Sangamon street, in Chicago, in a house having doors, windows and views of the street, through which light, air and views had and ought to enter into the dwelling house, and the views should not have been obstructed, and the use of the light and air and views should not have been obstructed, and ought to be used by plaintiff and his family, for the wholesome use and occupancy thereof, avers: Yet, the said defendants, well knowing the premises, but contriving, wrongfully and unjustly intending to injure the plaintiff and his family, and to deprive them of the use of said doors, windows and views, and to incommode him in the use and enjoyment thereof, and to annoy plaintiff in his use and possession and enjoyment of said premises, on, etc., wrongfully and injuriously caused and erected and raised a high board fence, and caused to be erected, constructed and raised on the north part of said lot and dwelling house and lot, and adjoining thereto, a high board obstruction. The obstruction was made and constructed next to the north line of the house and lot, No. 73 South Sangamon street. It was made upon the south line of an alley next north of said house and lot, and close adjoining, and was so made and constructed, and is now standing, and in such close proximity that it hides the original fences. It nowhere protects the alley, and it is so raised and constructed, and of such height made at certain places in its construction, and so near to the windows, that it wrongfully and injuriously darkens the said dwelling house, obstructs the light to said windows, and is so made as to obstruct the view to said street, and in fact is so constructed, wrongfully and injuriously, as aforesaid, as to interfere with the use of, and the light and air and views from said dwelling house, and thereby renders said dwelling house of but little use to plaintiff and his family; and defendants have wrongfully and injuriously kept and continued said high board fence obstruction, etc., by them erected, as aforesaid, for a long space of time, to-wit, etc.; and the same is now continued, by means of which premises, the said dwelling house, with its appurtenances, are greatly darkened and injured, and they continued darkened and injured, and the light, air and views were and are hindered and prevented from coming into, and through the said windows, into said dwelling house, and the same hath thereby been rendered, and is close, uncomfortable, unwholesome and measurably unfit for habitation, and plaintiff and his family have thereby been, and still are, greatly annoyed and incommoded in the use, possession and enjoyment of said dwelling house and lot, with the appurtenances, to-wit, etc., to the damage, etc.

The second count, omitting the formal and introductory parts, avers: Yet, the said defendants, well knowing the premises, but continuing, etc., and intending to injure and prejudice plaintiff and to deprive him of the use, benefit and enjoyment of the said windows, and to annoy and incommode him in the use, possession and enjoyment of said dwelling house, with the appurtenances, heretofore, to-wit, etc., (with a continuando), wrongfully, maliciously, wilfully and injuriously greatly darkened said windows, and hindered and prevented the light and air from coming and entering into, into and through said windows into said dwelling house and premises, and the same have thereby been rendered and are uncomfortable, unwholesome and unfit for habitation, and the plaintiff thereby has been and is greatly annoyed and incommoded in the use, possession and enjoyment of said dwelling house and premises, with the appurtenances, to his damage, etc. The plea was, not guilty.

Under instructions from the court, the plaintiff had a verdict for eight hundred and thirty-eight dollars, a portion of which was remitted and judgment rendered for five hundred dollars.

To reverse this judgment defendants appeal.

We have copied, literally, the counts of the declaration, in order that the precise nature of the action may be seen and understood.

Appellee claims that the gravamen of the action is not for obstructing light and air and views, but it is for erecting an unsightly fence and of offensive materials. The logic of the narr. certainly is, that plaintiff having the right to use the light and air and views, he has been deprived of the same by the erection of the fence, and by which erection his dwelling has been darkened, rendered unwholesome and unfit for habitation. The latter is alleged as a consequence of the erection of the fence, and the right to build the fence is denied, because of plaintiff's right to have free course for light and air and an unobstructed view from his windows. The gravamen of the action most clearly is, the obstruction of light, air and view, the rest being consequences, merely, of the obstruction. It is not alleged, the materials which composed the obstruction--the fence--were of an offensive nature, or that the air, in passing through or over the fence, became charged with offensive matter. The averment simply is, by erecting a fence the passage of light and air has been obstructed, by which the dwelling has been darkened, rendered unwholesome and unfit for habitation.

In this view of the nature of the action, the first question to be determined is, were defendant's lots, on the south boundary of which they erected this fence, servient lots; in other words, had the plaintiff any right to the passage of light and air laterally over defendant's lots, to plaintiff's doors and windows, and to an unobstructed view of an adjacent street? If he had, whence does he derive it? This is for him to show, and he has not shown it. He shows no right by prescription, by use for twenty years, if such use could be available, and no grant from any one. The owner of the premises erected the dwelling house occupied by plaintiff within two feet of the south line of defendant's premises. We have been referred to no law forbidding defendants from erecting a fence on the line of their own land. Admit the erection does darken the rooms of his neighbor--that it does render them close and uncomfortable, and annoy and incommode him, the defendants have only exercised a right belonging to them, by building the fence.

This is not a case of ancient lights. The plaintiff insists it is for a nuisance, arising out of a violation of the maxim, “ sic utere tuo ut alienam non lœdas.'DDD' It is not denied, that, by the common law, an action on the case lies for a nuisance to the habitation or estate of another, many instances of which are readily found in the books; and among the many hundred, one is now before us, in 10 Ad. & Ellis, 590, Hight v. Thomas, 37 E. C. L. Rep. 182, and is germane to this case. That was an action for annoying plaintiff in the enjoyment of his house, by causing offensive smells to arise near to, in, and about the house. The defendant pleaded the enjoyment, as of right, for twenty years of a mixen (compost heap or dunghill) on his land contiguous and near to plaintiff's house, whereby, during all that time, offensive smells necessarily and unavoidably arose from the said mixen. This plea was traversed, and there was a verdict for the defendant. In the King's Bench the plea was held bad, and the plaintiff entitled to judgment, as it did not show a right to cause offensive smells in the plaintiff's premises, nor that any...