Hartman v. Wells

• Decision Date: 06 February 1913
• Citation: 100 N.E. 500,257 Ill. 167
• Parties: HARTMAN v. WELLS et al.
• Court: Illinois Supreme Court

257 Ill. 167

100 N.E. 500

HARTMAN

v.WELLS et al.

Supreme Court of Illinois.

Dec. 17, 1912.

Rehearing Denied Feb. 6, 1913.

Appeal from Superior Court, Cook County; Richard E. Burke, Judge.

Bill by Leon Hartman against Mary Wells and others, executors and trustees of the last will of Thomas E. Wells, deceased. From a decree in favor of complainant for a part only of the relief demanded, he appeals. Reversed and remanded, with directions.

David K. Tone, of Chicago, for appellant.

Maurice Berkson, of Chicago, for appellees.

FARMER, J.

The bill in this case was filed by appellant to enjoin appellees from violating a building line agreement entered into between appellant and the grantor of appellees, and for a mandatory injunction to compel appellees to remove certain porches erected in violation of said building line agreement.

The bill alleged that on May 5, 1903, appellant was about to purchase lot 4 in a subdivision of the east 315 feet of the northeast quarter of the northwest quarter of the northwest quarter of section 10, township 38 north, range 14 east, of the third principal meridian, in the city of Chicago, and one Simon Lederer was at the same time about to purchase lot 3 in the same subdivision and adjoining lot 4; that, for the purpose of establishing a building line on the east end of said lots for their mutual advantage and benefit, appellant and said Lederer executed a building line agreement. The agreement is a lengthy document and is set out in full in the bill. The consideration on the part of appellant for the agreement was the payment by him to Lederer of the sum of $2,000 in cash, and an agreement that neither he nor his heirs, personal representatives, or assigns would permit any building to be located or erected on or to project over a strip of land five feet wide next to the north line of lot 4; said strip to be forever maintained and kept as an open space for the purpose of affording light and ventilation for buildings that might be erected on said lots 3 and 4. Said agreement bound said parties to it, their respective heirs, administrators, and assigns, to establish and forever maintain and keep a building line for the front of said lots, and that no building, or any part of it, should at any time be located or erected or permitted to exist on or project over any portion of said lots east of a line drawn north and south through said lots 25 feet west of and parallel with the east line of said lots, except that bay windows and vestibules under bay windows might project not to exceed four feet east of said line, cornices, and similar architectural features two feet east of said line, and steps and porches not to exceed nine feet and six inches east of said line, but no porch extending more than four feet east of said line was to be erected above the height of the first story. It was further covenanted and agreed by the parties to said instrument, for themselves, their heirs, executors, administrators, and assigns, that an action for damages for the breach of any of the covenants or agreements in said instrument contained might be maintained against either of the parties, their heirs, executors, administrators, or assigns, and against any person or persons in possession, occupancy, or control of said lots, or either of them, for the violation of any of the agreements, and the further right to enjoin the erection of a building, structure, bay window, or porch in violation of the agreement, and also the right, by proper legal or equitable proceedings, to compel the tearing down or removal of any building, bay window, or porch built and maintained in violation of the agreement. The instrument was acknowledged and recorded May 18, 1903. The bill alleged that, after the execution of said building line agreement, appellant purchased said lot 4 and Lederer purchased said lot 3; that afterwards, August 31, 1905, Lederer and wife conveyed lot 3 to Thomas E. Wells; that Wells died August 3, 1910; and that appellees are executors and trustees under his last will and testament by appointment of the probate court of Cook county and are acting as such. The bill further alleged that, after the establishment of said building line, appellant purchased lot 5, which lies immediately south of and adjoining lot 4; that he erected upon lot 5 a private residence at a cost of more than $50,000, and both lots 4 and 5 were used together as appellant's private residence; that appellant was continuously absent from his home from February 14, 1911, until March 27, [257 Ill. 170]1911; that when he returned home he discovered that during his absence appellees had caused plans and specifications to be prepared for porches, to be built of stone and concrete, on the second and third stories of the building on lot 3, and were then engaged in their construction; that pillars composed of stone or concrete, with a framework composed of stone or concrete, had been completed; that said pillars and framework projected more than nine feet east of the building line, which was five feet beyond the point permitted by the building line agreement; that the floors of the porches were designed to be constructed of concrete, but at the time of appellant's return home temporary floors had been laid of loose, rough boards. The bill alleges appellant told appellees they were violating the building line agreement, and appellees agreed to discontinue the erection of the porches, but afterwards resumed work on them. The bill prayed that appellees be temporarily enjoined from work on the said structures, and that upon a final hearing they be perpetually enjoined from building porches or structures in violation of said building line agreement, from using the porches already built in violation of said agreement, and that a mandatory injunction issue to compel appellees to remove the porches and structures built on lot 3 in violation of said building line agreement. A temporary injunction was granted as prayed. Appellees in their answer to the bill did not deny the building line agreement, but denied they had any knowledge of it. The defense relied upon in the answer and now urged is that the building of the porches is not a damage to the appellant's property but enhances its value; that the structures complained of are practically complete; that they cost to exceed $4,500, and improve the value...