Loomis v. Collins

• Decision Date: 06 April 1916
• Docket Number: No. 10349.,10349.
• Citation: 272 Ill. 221,111 N.E. 999
• Parties: LOOMIS et al. v. COLLINS.
• Court: Illinois Supreme Court

272 Ill. 221

111 N.E. 999

LOOMIS et al.

v.COLLINS.

No. 10349.

Supreme Court of Illinois.

Feb. 16, 1916.

Rehearing Denied April 6, 1916.

Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Suit by Bertha C. Loomis and others against Thomas A. Collins. From a decree in favor of the plaintiffs, the defendant appeals. Reversed and remanded, with directions.Charles L. Bartlett, Sherman C. Spitzer, Robert Humphrey, and Edw. J. McArdle, all of Chicago, for appellant.

Richards, Voigt & Darby, of Chicago (John F. Voigt, of Chicago, of counsel), for appellees.

FARMER, C. J.

This is an appeal from a decree of the circuit court of Cook county awarding a mandatory injunction against defendant, Thomas A. Collins, commanding him to remove or alter, in the manner directed by the decree, the front part of a flat or apartment building in process of construction by him on lot 7 and the north 20 feet of lot 8, block 9, Jackson Park Highlands subdivision, in Cook county, Ill. The mandatory injunction was awarded upon the ground that there was a building line restriction which prohibited any building being placed nearer the street line than 30 feet. Collins has appealed from that decree to this court. The parties will be referred to as complainants and defendant.

Jackson Park Highlands is a subdivision of the east half of the southwest quarter of section 24, town 38 north, range 14 east of the third principal meridian, Cook county, Ill. It is immediately south of Jackson Park, and lies between Sixty-Seventh street on the north and Seventy-First street on the south. The land was purchased, subdivided, and platted by a syndicate composed of Frank I. Bennett, George Bennett, Clyde L. Day, Edward P. Skene, Samuel G. Hatch, Francis B. Bowes, Luther W. Conover, Charles J. Bour, Frank B. Harriman, and George C. Bour. The plat was filed for record in the recorder's office August 3, 1905, and for convenience in conveying the lots to purchasers the title to all of the subdivision was conveyed to the State Bank of Chicago as trustee for the syndicate, which was unincorporated. All deeds conveying lots in the subdivision have been executed by the bank as trustee, but the active agents in selling and improving the property were the members of the syndicate, or some of them. The avenues of said subdivision as platted are, from east to west, Jeffery, Euclid, Bennett, Constance, and Cregier. Across the front part of all the lots in said subdivision as shown by the plat, and a little way back from the street lines, are dotted lines, just above each of which is written: ‘Building line 30 ft. back from street line.’ The first improvement made in the subdivision after it was platted and before any lots were sold to purchasers was the building of 20 houses by the trustee upon lots fronting Euclid avenue. These houses and lots were afterwards sold to various purchasers, and some vacant lots fronting Euclid avenue were sold. The first deed made of any lot in the subdivision fronted Euclid avenue, and was to Mrs. Anna M. Pattillo, and contained the following provision:

‘It is understood and agreed as a part of the consideration above expressed that no flat building or apartment house, or any building other than a private dwelling house such as is usually designed and built for the use and occupancy of a single family, shall for a period of twenty-five years from May 1, 1906, be constructed or placed on said premises; that no dwelling house shall be constructed or placed on said premises at a cost of less than $5,000; that no building shall be constructed on the east thirty feet of said premises (however, private barn and usual outbuildings for the use of the occupants of such dwelling may be erected on the west thirty feet of said lot 5). * * * And the grantor hereincovenants and agrees that all deeds that shall be given for lots fronting on Euclid avenue (except the south two hundred feet thereof) in said subdivision shall contain provisions as to building restrictions and the use of said premises, substantially similar to those contained herein.’

This is now the property of complainant Walter. At a period of about two years later the trustee built 14 houses fronting on Bennett avenue, and began selling them and vacant lots fronting on the same avenue. Still later about two years the trustee built 19 houses fronting Constance avenue, and began selling them and vacant lots fronting said avenue. At the time of filing the original bill, April 5, 1915, 87 houses had been built in the subdivision on lots fronting Euclid, Bennett, and Constance avenues. No lots had been sold in the subdivision fronting Jeffery avenue until the sale to defendant, Collins, on November 24, 1914, of lot 7 and the north 20 feet of lot 8, block 9, and no houses had been built on the lots of the subdivision fronting Jeffery avenue. All of the deeds to purchasers of lots fronting Euclid, Bennett, and Constance avenues contained substantially the same conditions contained in the deed to Mrs. Pattillo, except that the deeds to lots fronting Constance avenue excepted from the building line restriction, in addition to the south 200 feet, also the north 100 feet on said avenue. The deed to defendant, Collins, contained the following provisions:

‘It is understood and agreed as a part of the consideration above expressed that no building shall be constructed or placed on the east thirty (30) feet of said premises: Provided, however, that porches, sun porches and steps may extend to a point twenty (20) feet west of the east line of said premises. And in consideration of the acceptance of this instrument it is agreed that the grantor herein shall not convey any of lots one (1) to twelve (12), inclusive, in block nine (9), or any part or parts thereof, in the subdivision aforesaid, without inserting in the conveyance thereof a building line restriction similar to the one herein inserted.’

On March 6, 1915, defendant, Collins, began excavating for a three-story flat or apartment building on his lots, and on March 15th began the erection of the building. He had constructed it up to the third floor joists at the time the bill was filed, April 5, 1915. The wall of the main building did not extend beyond a line 30 feet back from the east lot line, but in connection with the building, and as a part of the front, Collins was constructing two sun porches which extended east from the main building 8 1/2 feet, leaving 21 1/2 feet between the east line of the sun porches and the street line.

The complainants in the bill are Bertha C. Loomis, Blanche E. Gillies, Charles E. Walker, Mary A. Walker, Charles Gross, Mary R. Bohnen, Joseph R. Bohnen, Clare L. Frame, Elizabeth R. Armstrong, Carrie M. Weil, Luther M. Walter, John S. Baxter, and Agnes B. Baxter, and are the owners or dwelling houses facing Euclid avenue on the east and west sides thereof. The bill alleges said avenue is a fine residence avenue, and that there are no flat or apartment buildings thereon, but that it is improved with dwelling houses only; that a map or plat of the subdivision, called Jackson Park Highlands, was filed in the recorder's office August 3, 1905, and shows a building line on Jeffery avenue 30 feet back from the street line, which is a restriction upon the owners and their grantees erecting any building upon the east 30 feet of all the lots fronting Jeffery avenue; that Jackson Park Highlands included all the lots and land extending from Sixty-Seventh street on the north to Seventy-First street on the south and from Cregier avenue on the west to Jeffery avenue on the east. The bill alleges there are no completed buildings fronting Jeffery avenue, and that there is no flat or apartment building in the subdivision, and that purchasers of lots in said subdivision since August 3, 1905, have relied upon the plat showing building line restrictions, that complainants were informed by agents of the owners of the premises purchased by them that the subdivision was restricted to high-grade residences, and that no flat or apartment buildings would be built therein. The bill then alleges that defendant, Collins, is erecting a six-flat building, 3 stories high, 60 feet wide, and about 90 feet deep, fronting Jeffery avenue, and is extending the building 10 feet east of the building line on the lot shown by said plat; that said building line restriction in said subdivision has not been generally violated, and that the acts of Collins complained of will result in great and irreparable injury to complainants' premises and to all the owners of lots in said subdivision; that they will be deprived of light, air, and vision, in violation of their rights under said plat and the representations made complainants in the purchase of their respective premises, unless the said Collins be restrained by injunction from proceeding with the erection of said flat building, or any part of it, within the restricted area. The bill prays that Collins be restrained from encroaching upon the building line established by the plat, and that he be required to remove the obstructions from the building line. By an amendment to the amended bill it was alleged that the parties composing the syndicate who platted the subdivision (naming them) adopted a general plan and scheme for its improvement, which scheme provided, among other things, that no flat or apartment buildings should be constructed in said subdivision, but that it be restricted exclusively to dwelling houses such as are usually occupied by one family, and that each lot should have a building line across the front 30 feet back from the street line; that the owners of the subdivision appointed Frank I. Bennett, George Bennett, and George C. Bour, who were members of the syndicate, agents to sell lots in said subdivision; that said agents advertised the sale of lots extensively and represented to prospective purchasers that the subdivision was restricted to residences and...