Rand v. Wilber

• Decision Date: 31 December 1885
• Citation: 19 Ill.App. 395,19 Bradw. 395
• Parties: JOHN S. RANDv.CHARLES D. WILBER ET AL.
• Court: United States Appellate Court of Illinois

19 Ill.App. 395

19 Bradw. 395

JOHN S. RAND

v.CHARLES D. WILBER ET AL.

Appellate Court of Illinois, Second District.

December Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the City Court of Aurora; the Hon. A. H. BARRY, Judge, presiding. Opinion filed April 5, 1886.

Mr. A. C. LITTLE, for appellant.

Mr. M. O. SOUTHWORTH, for appellees.LACEY, P. J.

This was a bill in equity, brought by appellees against the appellant, seeking to enjoin the latter from erecting a privy within five feet of appellees' line, or that will injure appellees or their premises, or be a nuisance, under ordinance of the city, or that will injure the well, or health of the family.

The bill charged that the appellee, Nancy Wilber, was the owner in fee of a certain lot in the town of Aurora; that she had a dwelling house on said lot that had been occupied by them as their dwelling for several years last past; that appellant was the owner in fee of the west eighty feet of the lot; that appellees' house was within six feet of the west line of said lot and a few inches from the south line of the lot; that six feet from the west line of said lot is appellees' well, which is also fifteen feet from the south line; that this well supplied them with water for domestic purposes. It further charges that appellant had dug a vault several feet deep up to the east line of said lot within a few inches of the south line, and that appellant was constructing a vault for a privy, and was going to put on it the structure heretofore used and use the same for a privy, and will use the same for a privy unless enjoined. The bill charges that it was within six feet of the kitchen door of appellees and within twelve feet of their well, and if built and used as a privy will become a nuisance to appellee and family, prevent the enjoyment of the premises and depreciate the value of same. The appellant has room on his own lot for a privy and if this is completed irreparable injury will be done to appellees. The appellant refuses to stop building and claims that he has a right to build a privy anywhere on his own lot. An injunction was granted temporarily. The appellant, in his answer, denied that he was building a new privy or any privy, but that where the old privy vault was, he having covered the same and made it part of his dwelling house, will use it for an ash pit.

A supplemental bill was filed showing that appellant had completed the vault and privy and inclosed it and would use it unless enjoined, and asks an additional injunction. Appellant answered denying that he intended using the vault and privy for the purpose of a privy. Upon a hearing of the case the court entered up final decree, finding the material allegations of the bill to be sustained and true, and perpetually enjoining appellant from using the said...