Newell v. Sass.

• Decision Date: 12 May 1892
• Citation: 31 N.E. 176,142 Ill. 104
• Parties: NEWELL et al. v. SASS.
• Court: Illinois Supreme Court

142 Ill. 104

31 N.E. 176

NEWELL et al.

v.SASS.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.

Bill by Christena Sass against Frank V. Newell and Charles W. Sprague to enjoin the construction of an alleyway. Complainant obtained a decree, which was affirmed by the appellate court. Defendants appeal. Affirmed.H. S. Mecartney

, for appellants.

James Maher, for appellee.

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

Christena Sass filed her bill in equity in the superior court of Cook county, wherein she alleged that she is the owner of lots 9 and 10, in block 1, in Hamilton's subdivision of E. 501 62-100 feet of the N. 1,622 feet in the N. 1/2 E. 1/2 N. W. 1/4 S. 18, township 39 N., range 14; that she has buildings thereon, and occupied the same as a residence; that Frank V. Newell is the owner of and in possession of lots 11 and 12 in same subdivision, and that his lots are adjacent to complainant's, and are situated on the north side of Monroe street, in the city of Chicago, between Hoyne avenue and Leavitt street; that on July 14, 1862, the subdivision was owned by the aforesaid heirs of Richard J. Hamilton, deceased, and they, together with Priscilla P., the widow of said Hamilton, executed the subdivision, and recorded a map thereof, in Cook county, in Book 161 of Maps, page 62, a part of which map, including said lots 9, 10, and 12, with the streets, alleys, and measurements, are hereby shown as follows:

Image 1 (2.63" X 2.73") Available for Offline Print

That south of said lots there is a street 16 feet in width, extending east and west, and south of and adjoining said street is a private park 16 feet in width, also extending east and west the full width of said subdivision, and adjoining said lot 12, and that north of said last-named lots there is a private alley 20 feet in width, and on the west side of said subdivision, and adjoining said lot 12, there is a private alley 7 1/2 feet wide, running from the west (south) side of said 20-foot alley, south, to Monroe street; the sidewalk on the south side of said block 1 is of the width of 8 feet, and the 7 1/2-foot private alley is the only means of egress and ingress from Monroe street, and is the shortest and traveled route for vehicles to the barn of your oratrix, and the said 20-foot private alley; that said private alley was laid out by the aforesaid owners of said subdivision for the use and benefit of complainant, and of each and every owner of lots or parts thereof in the block 1. Said 7 1/2-foot alley has been used and passed over by the owners and occupants of said block 1 for more than 25 years last past, and your oratrix claims that she has the right to pass in and upon said last-named alley, in going to and coming from the rear of said lot 10; that she has a large barn erected on the rear of her premises, and that the barn is used for stabling horses, storing hay, wagons and other vehicles and that the south end of said lots 9 and 10 are occupied, each, by a building nearly the width of each lot, and that the only way to reach said barn with horses, wagons, etc., is through said private 7 1/2-foot alley, north of Monroe street, to said private 20-foot lot, and thence east to said barn; that said Newell is now constructing a large building on said lot 12, and along the west line thereof, and that he is now constructing a projection, commonly called a ‘bay window,’ on the west side of said lots, which extends 3 feet upon and over said 7 1/2-foot alley; that from the west end of said bay window to the west line of said 7 1/2-foot alley is only about 4 1/2 feet; and that if said bay window is erected it will be impossible to pass along said alley with any wagon or other vehicle over 6 feet high, and that irreparable injury will accrue to your oratrix, and reduce the value of her said premises, etc.; that defendant Sprague is an architect, and has part charge of the construction of said building. In consideration whereof oratrix prays that said Newell and Sprague, and each of them, and their agents, may be restrained by injunction from constructing or building said bay window, and that, upon final hearing thereof, the same may be perpetual; that they may be ordered to remove any and all obstructions to the full use of said alley. The parties were properly summoned, and Newell answered that he admits that he is the owner of said lots 11 and 12, and admits there was a plat of said subdivision recorded at the time set forth in the bill, but denies that the same is correctly set forth; that he is informed and believes that the portion of said plat described as the 7 1/2 feet west of and adjoining said lot 12 was never properly accepted by the city of Chicago, or by the public, and that the same has never been legally established as a private alley for the use of complainant, or the owners of said lots 9 and 10, and denies that said 7 1/2 feet was ever intended for a private or carriage way; that defendant has erected good and substantial dwellings on said lots 11 and 12, extending to the line of said lot 12, and that the use of said 7 1/2-foot alley by the public, or other owners of said block, as a carriage or other way, would seriously injure him in the enjoyment of said property. Defendant is informed and believes that if said original plat was produced it would show no intended dedication of the strip as a private alley. Denies that said 7 1/2-foot alley is the only means of ingress and egress from Monroe street to the premises of said complainant, and avers that she has ingress and egress by means of a private alley 20 feet wide, to the west line of said subdivision, being only 52 feet from complainant's premises, and thence by a public alley to Leavitt street, being about 100 feet long, and thence to Monroe street about 100 feet long, which is far more convenient for complainant's use than the said strip, being much wider, and more convenient than the other means; that complainant has also convenient means of ingress and egress to Monroe street on the east by means of an alley, well traveled, from Nonroe street to said 20-foot alley in the rear of complainant's lots; admits that, at the time of filing this bill and issuing of injunction, he had partly constructed a bay window on the house which he was building on said lot 12, and that, by means of said injunction, and in obedience to its mandate, he has taken down said bay window, and has been put to great expense and damages; and prays that, upon the final hearing hereof, decree may be entered dissolving said injunction, and that complainant may be decreed to pay said damages. A petition was presented to the court for leave to file supplemental bill, which recites filing of original bill, the issuance of injunction, and service upon the defendants; states that the defendant Newel appeared, and answered said bill, and replication was filed. That before any other proceedings were had defendants, or some one for them, ‘have made an excavation about 3 feet in width, and 2 or 3 feet deep, in the east side of said private alley,’ and that defendants are about to fence said private alley, and deprive complainant of the use thereof. Leave was given to file supplemental bill, which was accordingly done. It recites the filing of original bill, issuance of injunction, and that since defendant Newell or some one under him has made an excavation 3 feet wide and 2 or 3 feet in depth on east side of said private alley, and is about to close up the same, and take possession thereof, and that it will work irreparable injury to your oratrix, and reduce the value of her said premises. Prayer for injunction issued, restraining defendants, their agents, etc., from excavating or in any way interfering with the right of compla...