Hous. Auth. of Gallatin Cnty. v. Church of God

• Decision Date: 24 September 1948
• Docket Number: No. 30657.,30657.
• Citation: 401 Ill. 100,81 N.E.2d 500
• Parties: HOUSING AUTHORITY OF GALLATIN COUNTY et al. v. CHURCH OF GOD et al.
• Court: Illinois Supreme Court

401 Ill. 100

81 N.E.2d 500

HOUSING AUTHORITY OF GALLATIN COUNTY et al.

v.CHURCH OF GOD et al.

No. 30657.

Supreme Court of Illinois.

Sept. 24, 1948.

Appeal from Circuit Court, Gallatin County; Charles T. Randolph, judge.

Suit by Housing Authority of Gallatin County and others, against Church of God and others, to enjoin the erection of a church building on certain lots, the maintainence of a church building, and the conducting of church services in any building on lots. From a decree in favor of the plaintiffs, defendants appeal.

Decree affirmed.

Lynndon M. Hancock and Dale A. Letts, both of Harrisburg, for appellants.

C. K. Roedel and Joseph L. Bartley, both of Shawneetown, for appellees.

WILOSN, Justice.

A decree of the circuit court of Gallatin County enjoined James M. Oxford, Ross Glover and John Padgett, trustees of the Church of God, from erecting a church building on two lots located in the Housing Authority Addition to the city of Shawneetown, maintaining a church building, or conducting church services in any building to be erected on the property. The trustees prosecute this appeal.

From the pleadings it appears that the Housing Authority of Gallation County is a municipal corporation, organized conformably to ‘An Act in relation to housing authorities,’ approved March 19, 1934, as amended. (Ill.Rev.Stat.1947, chap. 67 1/2, par. 1 et seq.) In april and May, 1938, the Housing Authority purchased considerable land which was thereafter annexed to, and made a part of, the city of Shawneetown. After the purchase of the land, the Housing Authority caused the land to be surveyed and laid out in blocks and lots and a plat placed of record in the recorder's office of the county. The HousingAuthority adopted a plan or policy providing that certain lots should be used for residential purposes only, some for business purposes, and others for church purposes, and caused to be noted on the plat of record that all lots not marked for residential purposes would be used for business purposes. Seven hundred of these lots had been sold prior to the day this action was commenced, and three hundred lots were still retained and owned by the Housing Authority. The deeds conveying all lots sold contained provisions that the lots were to be used for residential or business purposes, respectively, and that the grantees purchased the lots with the understanding all lots were to be sold with the same condition or provision incorporated.

On October 11, 1945, the Housing Authority sold to James M. Oxford three lots, described as lots 2, 3 and 4, in block 16, in Unit ‘A,’ of the Housing Authority Addition to the city of Shawneetown, and executed and delivered to the grantee a deed providing, in part, ‘to be used for Residential purposes and not otherwise, subject to all other restrictions, easements and conditions set forth on said plat,’ the reference being to the plat of the Housing Authority Addition. Thereafter, on September 12, 1947, Oxford and his wife conveyed lots 2 and 3 to himself, Ross Glover and John Padgett, constituting the local board of trustees of the Church of God, at Shawneetown, their assigns and successors in trust. This deed contained the following provision, among others: ‘The said Local Board of Trustees shall hold title to, manage and control the said real estate for the general use and benefit of the Church of God having its general headquarters in Cleveland, Tennessee, and for the general use and benefit of the Local Congregation in the City of Shawneetown, Illinois.’ The Church of God, so far as the public records disclose, is not organized or incorporated.

George Frields, Jr., and his wife own lot 27 and the west half of lot 28, in block 15, of the Housing Authority Addition across the street from lots 2 and 3, in block 16, acquired by the trustees. The property owned by Frields is improved with a house occupied by his family and himself. Millard Winters owns lots 30, 31 and 32, in block 15. These lots are improved with a dwelling house occupied by Winters and his family.

September 29, 1947, the plaintiffs, the Housing Authority of Gallatin County, Frields and Winters, filed their complaint against the Church of God, Oxford, Glover and Padgett, its trustees. Plaintiffs charged that the trustees are erecting and intending to erect a church on lots 2 and 3, in block 16, and intend, when the church building is erected, to conduct church therein; that, if defendants are permitted to erect or maintain the church, or to conduct church therein, they, the plaintiffs, will be irreparably injured and the value of their property reduced, especially for residential purposes; that it is the practice of the Church of God to conduct its religious services to late hours of the night and sometimes until the early hours of the morning, and that they talk and sing in such loud voices that the rest, peace and quiet of the neighborhood will be disturbed. The relief sought was an injunction restraining defendants from erecting any church building on lots 2 and 3, in block 16, maintaining a church building, or conducting church in any building to be erected on these lots.

By their answer, defendants admitted or denied the material allegations of the complaint and, as an affirmative defense, averred that, prior to the execution and delivery of the deed to the trustees, the plaintiffs abondoned the restrictive conditions and provisions previously described and, by the conduct of the officers and agents of the Housing Authority, led defendants to believe that no restrictions or policy prevailed which would prevent them from constructing a church building and a residence to be used in connection therewith on the real estate in controversy. Defendants averred, further, that the Housing Authority had, prior thereto, waived and abandoned all restrictions and conditions to another grantee in block 16, Unit ‘A,’ permitting him to construct a building to be used for residence and office purposes, and pursuant to this permission, a law office and abstract office had been constructedon the property, and that the General Baptist Church had been permitted to construct a church building in block 16. Defendants asserted that, conformably to the agreements, acts and conduct of the Housing Authority, they were induced to purchase the real estate in question and given permission by the city clerk of Shawneetown to erect on the property a church house and expend $1500 in the preparation, plans and partial construction of the church building. Concluding averments of the answer are that, if the prayer of plaintiffs' complaint be granted, the defendants and their successors in trust will be discriminated against in violation of the provisions of the first amendment to the Federal constitution which ordains that Congress shall make no law respecting an establishment of religion, or prohibiting its free exercise, and of our constitution guaranteeing forever the free exercise and enjoyment of religious profession and worship.

Plaintiffs filed a replication denying the averments of the special defense except that they admitted the Housing Authority sold lot 18, in block 16, to James W. Karber and provided in the deed to him that the lot should be used for residential and office purposes, and not otherwise, and that Karber erected a building on the lot which is now used for residential and office purposes. They also admitted that the General Baptist Church erected a church building on the north side of the street in block 16 soon after the Housing Authority Addition to Shawneetown was platted and before any of the lots adjoining or near the lot where the church building was erected were sold, the lot still being owned by the Housing Authority. Plaintiffs added that no express authority was given to the Baptist Church by the Housing Authority, admitted that the building is used for church purposes, and declared that it is located a greater distance from the property of Frields and Winters than the building in process of construction by defendants, that no complaint has been made to the Housing Authority or objection concerning it and, further, that the building was being used for church purposes when Frields and Winters purchased their lots. Plaintiffs replied, further, that, in another instance, the Housing Authority waived its plan for the use of the lots in the Housing Authority Addition by deeding to the Church of God lot 16, in block 25, an entirely different tract from the two lots involved in this proceeding, and provided in the deed to the church that the lot may be used for church purposes.

Plaintiffs denied that the city clerk gave defendant permission to erect a church building on lots 2 and 3, in block 16, and alleged that, although defendants made application to the clerk, he informed them that they would have to obtain the consent of the city council, which consent was never given. In conclusion, plaintiffs answered defendants by saying that the chairman of the board of directors of the Housing Authority expressly informed defendant Oxford he would...