McGovern v. Brown

• Decision Date: 24 April 1925
• Docket Number: No. 15786.,15786.
• Citation: 147 N.E. 664,317 Ill. 73
• Court: Illinois Supreme Court
• Parties: McGOVERN et al. v. BROWN et al.

317 Ill. 73

147 N.E. 664

McGOVERN et al.

v.BROWN et al.

No. 15786.

Supreme Court of Illinois.

April 24, 1925.

Error to Superior Court, Cook County; Joseph Sabath, Judge.

Suit by Owen McGovern and others against Samuel Brown and another. Decree for defendants, and plaintiffs bring error.

Affirmed.

Martin & Martin, of Chicago, for plaintiffs in error.

Shulman, Shulman & Abrams, of Chicago (Meyer Abrams, of Chicago, of counsel), for defendants in error.

DUNCAN, C. J.

Plaintiffs in error, Owen McGovern, Rose Friedrick, John J. Brunen, Nick Palivos, and Thomas A. McClory (herein referred to as complainants), filed their bill in the superior court of Cook county to enjoin Samuel and Mary Brown, defendants in error (herein called defendants), from violating a building line restriction imposed on the property upon which they were about to erect a building. A temporary injunction was issued, and thereafter defendants filed their answer to the bill. A replication was filed to the answer, and the issues were referred to the master in chancery for proofs and findings. The master recommended that the relief prayed in the bill be decreed and overruled objections. The court heard the cause on exceptions, which were sustained, and dismissed the bill for want of equity. Complainants have filed a transcript of the record in this court for a review by writ of error.

The lots affected by this suit are 24 in number, numbered 25 to 48, inclusive. They are situated betweenCicero and Kilpatrick avenues and face south on Jackson boulevard, in Chicago, and are in the south half of block 6 in Hobart's subdivision of the northwest quarter of the northwest quarter of section 14, township 39 north, range 13 east, Cook county, Ill. Lot 25 is west of lot 48 and corners on Cicero avenue and Jackson boulevard, and lot 48 corners on Kilpatrick avenue and Jackson boulevard.

The bill alleges the following facts: In 1888 Davenport Galbraith became the owner of the south half of block 6, except lots 25 and 26. The plat of Hobart's subdivision was recorded in 1874. Galbraith sold at auction in 1889 the majority of the lots in the block through his agents, E. A. Cummings & Co. His agents, in advertising the auction sales of the lots, used printed maps and literature, and as an inducement to prospective purchasers they printed these words in the advertising literature: ‘A building line of thirty feet on West Monroe, Adams and Jackson streets.’ By mesne conveyances complainant McGovern became and is now the owner of lot 35 in the block, complainant Friedrick of lot 33, complainant Brunen of lot 28, complainant Palivos of lot 30, and complainant McClory of lot 29. Defendants are owners of lots 31 and 32 as joint tenants. All the deeds contain the following provision, or words of the same tenor and effect:

‘This deed is granted upon the express condition and stipulation that no building be erected upon the said above premises prior to January 1, 1898, costing less than $2,000, the necessaryoutbuildings of any residence excepted. Second party [purchaser] also agrees not to build within thirty feet of the south line of said premises.’

The abstracts of title for the respective lots disclose the building restrictions, and that the purchasers of the lots invested their money in them, erected buildings upon them, and made improvements in accordance with the building restrictions. The bill alleged that on January 31, 1923, the defendants wrongfully and unlawfully applied for and obtained a building permit for the erection of an apartment building on their lots; that the building, as shown by the plans and specifications, has six apartments and six sun porches; that the apartment building is set full up to the building line, and the sun porches will extend over the established building line from 10 to 12 feet, will run up the whole front of the building from the basement to the roof, and are on a foundation contiguous with the building, with contiguous walls and of the same material, and will be material parts of the building; that the object sought by Galbraith in inserting the building line restriction in the deeds to said lots was to establish uniformity in appearance and construction of any improvements made on the lots; that if defendants be permitted to construct their apartment building as contemplated, it would destroy the object for which the restriction was imposed on the lots, which would be contrary to the intent and purpose for which Galbraith established the building line; that complainants bought their lots on the strength of living in a strictly residential district and have built or purchased residences strictly obeying and abiding with and by the building line restriction; that the building line restriction in the deeds from Galbrath contains the covenant ‘that forever no building shall be erected on any of the said lots within thirty feet of the street line thereof.’

By their answer defendants admit that they own lots 31 and 32; that they obtained a building permit to build their apartment; and that the sun porches thereof will extend beyond the building line to the extent of 10 or 12 feet. They deny the other allegations in the bill in part, and neither admit nor deny other allegations and require strict proof. They aver that the owners of the other lots who have built thereon have disregarded the building line restrictions, and have extended their buildings, bay windows, porches, and steps therefrom from a few inches to 8 feet beyond the building line.

On the hearing before the master it was established that the buildings on lots 25 and 26 are built up to the sidewalk on Jackson boulevard and cover the entire 30 feet of ground within the restriction. After the master had made his report, complainants filed an amendment to their bill, striking out all reference to lots 25 and...