Keating v. Springer

• Decision Date: 19 June 1893
• Citation: 34 N.E. 805,146 Ill. 481
• Parties: KEATING v. SPRINGER.
• Court: Illinois Supreme Court

146 Ill. 481

34 N.E. 805

KEATING

v.SPRINGER.¹

Supreme Court of Illinois.

June 19, 1893.²

Appeal from appellate court, first district.

Action by Warren Springer against Michael Keating for use and occupation. Plaintiff obtained judgment, which was affirmed on appeal. 44 Ill. App. 547. Defendant appeals. Reversed.Hanecy & Merrick, for appellant.

Allan C. Story, for appellee.

The other facts fully appear in the following statement by MAGRUDER, J.:

On March 15, 1884, appellee executed a written lease of certain premises to appellant for the period, extending from April 1, 1884, to April 1, 1894, for $30,000, payable in monthly installments of $250 each. The premises are described in the lease as follows: ‘All those premises situated * * * in the city of Chicago, * * * known and described as follows, to wit: ‘The basement of the building known as Nos. 201, 203, and 205 So. Canal street, Chicago, being a space 50 feet by 70 feet, more or less; also the store floor or part of said building, and known as Nos. 201 and 203 So. Canal street, being a space 50 feet by 50 feet, more or less; also a space in the yard at the rear of said building, commencing at the N. W. quarter of said building, then west 25 feet, then south 25 feet, then east 25 feet, to building,-together with steam power not to exceed ten horse power, said steam power to be furnished ten hours per day, Sundays and holidays excepted. Said premises hereby leased to be used and occupied as a marble works and kindred business, and in no manner as to damage or interfere with tenants of adjoining property.’' The lease contained, among others, the following provisions, to wit: ‘Party of the first part [Springer] shall not build at the rear of said premises nearer than twenty-five feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises, and party of the second part shall at all times have the use and free access through all now existing alleys leading to rear of said premises.’ Appellant occupied the premises under the lease from its date until July 17, 1888, when he left them. The building was a two-story and basement frame building, fronting east on Canal street, between Van Buren street, on the south, and Jackson street, on the north, and having a depth of 50 feet. It had windows in the front and rear, and on the north and south sides. The territory around it was practically vacant at the date of the lease. There was then no building to the south of it nearer than 40 or 50 feet, except, perhaps, a small shed; none in the rear or to the west of it nearer than about 60 feet; and none to the north nearer than 30 feet, or more. There were some sheds and platforms to the north, and some rubbish to the west, but nothing to obstruct the light needed for cutting and polishing marble. In the space on the south there was an alley running west from Canal street to Clinton street, connecting with which was another alley running north and south in the rear of the premises in question. In 1885 appellee erected a large brick building, called the ‘Springer Building,’ having five stories above the basement, fronting 26 feet on Canal street, and having a depth of 75 feet. Its north wall was immediately against the south wall of appellant's building, called the ‘Keating Building;’ and it extended 25 feet further west than the Keating building, the extension of 25 feet being on the south line of the space in the rear of the Keating building, as described in the lease. The proof tends to show that appellee dug excavations on the lines of the alleys, and built boiler and machine shops in the rear of the Keating building, and placed obstructions of various kinds in the alleys and in the space to the rear of the Keating building. From the differences growing out of these transactions various suits have resulted. Appellee brought against appellant a suit in assumpsit for the use and occupation of said premises, to which nonassumpsit was pleaded; a suit upon a note alleged to have been given for rent, to which pleas of nonassumpsit and set-off were filed; three proceedings of distress for rent, in which the general issue and certain special pleas of set-off and general replications to the latter were filed. And appellant brought an action in case against appellee to recover damages for cutting off his light by the erection of the Springer building and other obstructions, to which the plea of not guilty was filed. The said special pleas set up violations of the covenants of the lease by alleging: that the light was shut off on the south and in the rear of the Springer building, and its extension to the west, and by the erection of shafting and machinery and other obstructions more than 15 feet high; and that the alleys were closed up by the placing therein of iron boilers, castings, engines, building materials, etc.; and that steam power was not furnished, etc. The suit for use and occupation was begun in the circuit court of Cook county. Of the other suits, one was begun in said circuit court, one in the superior court of said county, and three in the county court of said county. The four suits last named were transferred by proper order to the circuit court, and an order was entered by the latter court in the suit for use and occupation consolidating the other suits with it. A stipulation was entered into between counsel that there should be one trial, which should determine the matters in controversy in all the suits. A jury was waived, and by agreement the consolidation cause was submitted for trial before one of the judges of the circuit court, without a jury. Upon the trial, the plaintiff, Springer, introduced the written lease, and proved the amount of unpaid rent due thereon from October, 1887, to July 17, 1888. A large mass of evidence was introduced by the defendant, Keating, principally in support of the contentions that buildings and obstructions were erected in the rear of the premises nearer than 25 feet, and that the use of the alleys and free access through the same were interfered with and cut off. In contradiction of this evidence a large number of witnesses were examined by the plaintiff. At the close of his testimony thus introduced, the plaintiff offered in evidence, and the court received, over defendant's objection and exception, the proceedings in a forcible entry and detainer suit begun by Springer against Keating before a justice of the peace on April 25, 1888, wherein the complainant alleges that Springer was entitled to the possession of said premises, and that Keating unlawfully withholds the same, wherein judgment was rendered in favor of Springer on May 8, 1888, and an appeal was taken and perfected to the superior court, which appeal was dismissed on July 9, 1888, and a further appeal was taken and allowed to the appellate court upon filing bond and bill of exceptions within 20 days. On October 3, 1891, judgment was entered by the circuit court in favor of Springer for $2,907.50 against Keating, and in the suit of Keating against Springer the latter was found not guilty. This judgment has been affirmed by the appellate court, (44 Ill. App. 547,) and the case is brought here by appeal.

MAGRUDER, J., (after stating the facts.)

In this case many questions of fact and law are discussed by counsel in their briefs, but the record is not in such shape as to authorize us to consider any of these questions, except that which arises out of the refusal of the trial court to admit certain offered evidence, as hereinafter stated. The trial was, by agreement, before the court, without a jury, and resulted in a judgment for the plaintiff, which has been affirmed by the appellate court. The judgment of the latter court is conclusive as to the findings of fact. No ‘written propositions to be held as law in the decision of the case’ were submitted to the court on the trial below by either side, in accordance with section 42 of the practice act; and hence no question of law is presented for our determination, unless the errors assigned as to the admission or exclusion of evidence necessarily involve the consideration of such a question. Bank v. Haskell, 124 Ill. 587, 17 N. E. Rep. 59; Myers v. Bank, 128 Ill. 478, 21 N. E. Rep. 580; Hall v. Cox, (Ill. Sup.) 33 N. E. Rep. 33.

The evidence tends to show that a strong light is necessary for such business of manufacturing and polishing marble, as appellant was engaged in, and that the demised premises were selected by the appellant for that business mainly because of their freedom from surrounding obstructions to the supply of light. Accordingly, the defendant below offered to prove that the erection of the Springer building on the south side of the Keating building prevented the entry of light into the latter from the south and west. Upon objection by the plaintiff, the court refused to receive the testimony, and an exception was taken to its rulings by the defendant. The action of the trial court was correct, if there is no express covenant or agreement in the lease obligating the landlord to permit the light to pass over the south lot into the leased premises. The English doctrine is that, ‘if one who has a house with windows looking upon his own vacant land sell the same, he may not erect upon his vacant land a structure which shall essentially deprive such house of the light through its windows.’ Washb. Easem. marg. p. 492, par. 5. This doctrine, however, does not prevail in the majority of the American states. It is held to be inapplicable in a country like this, where the use, value, and ownership of land are constantly changing. Air and light are the common property of all. The owner of a lot cannot be presumed to have assented to an encroachment thereon if he has permitted the light and air to pass over it into the windows of his neighbor's house, situated upon the adjoining lot. The actual enjoyment of the air and light by the latter is...