Wente v. Commonwealth Fuel Co.

• Decision Date: 20 February 1908
• Citation: 83 N.E. 1049,232 Ill. 526
• Parties: WENTE v. COMMONWEALTH FUEL CO.
• Court: Illinois Supreme Court

232 Ill. 526

83 N.E. 1049

WENTE

v.COMMONWEALTH FUEL CO.

Supreme Court of Illinois.

Feb. 20, 1908.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Theodore Brentano, Judge.

Injunction by William Wente against the Commonwealth Fuel Company. From a judgment of the Appellate Court for the First District reversing a decree for complainant and directing the entry of a corrected decree for complainant, defendant appeals. Affirmed.Edward D. Pomeroy, for appellant.

Michael D. Dolan and Freeman K. Blake, for appellee.

CARTWRIGHT, J.

William Wente, appellee, filed his bill in the superior court of Cook county praying for an injunction restraining Commonwealth Fuel Company, appellant, from piling its coal against the west wall of the complainant's building, and from operating its coal hopper in the manner in which it had previously been operated. The grounds upon which the complainant asked for an injunction were that the piling of the coal against his building was a continuing trespass, and that the operation of the coal hopper as it had been operated caused smoke, dust, and cinders to permeate the air and fill his house, living apartments, and barber shop, destroying the furniture and contents of the house, and rendering it impossible to use and enjoy the same or to conduct his business the same as he had done before the erection of the hopper. The defendant, by its answer, denied that it had committed the trespass alleged by piling coal against the complainant's building, or that the operation of the coal hopper and machinery produced any of the deleterious effects alleged in the bill. The witnesses for the respective parties were produced and examined in open court, and from their testimony the court found the averments of the bill to be true, and entered a decree enjoining the defendant from storing and piling its coal against the west wall of complainant's house, and from storing or piling any coal against his fence, and from operating its plant, machinery, elevators, and hopper on the lot adjacent to complainant's house, and from causing any dust, cinders, or particles of coal to be deposited in complainant's house, barber shop, and tenements. From that decree the defendant appealed to the Appellate Court for the First District, and the case is brought to this court by a further appeal for the purpose of reviewing the judgment of the Appellate Court.

Although the judgment to be reviewed is that of the Appellate Court, and error must be assigned on that judgment, the brief for appellant, disregarding the rule of this court, contains no statement as to what that judgment was, or what disposition was made of the case by that court. The brief and argument are directed wholly against the decree of the superior court, and consist of an attack upon that decree, and the argument concludes by saying that the decree of the superior court ought to be reversed, as though that decree was still in force. The abstract, however, shows that the Branch Appellate Court reversed the decree of the superior court and remanded the cause to that court, with directions to enter a decree that the defendant be enjoined and restrained from piling coal against the west wall of the complainant's building or against his fence, and from operating said elevating plant in its present condition, or in such manner as to cause a sufficient amount of small particles of coal or coal dust to be carried from said plant to the building and premises of complainant to substantially and materially interfere with the ordinary comfort of physical existence in said building and premises, and that each party pay half the costs. The brief and argument, which are undoubtedly the same that were filed in the Appellate Court, assail the decree with equal vigor respecting provisions which were corrected by the Appellate Court, such as the decree being broader than the prayer of the bill, and enjoining the operation of the plant and causing any dust, cinders, or particles of coal whatever to be deposited on the complainant's premises, and those respects in which the Appellate Court directed a decree. The brief and argument lose much of their force from lack of application to the judgment under review, and illustrate the propriety and necessity of complying with the rules of this court. There would be no cause for complaint, if we should affirm the judgment of the Appellate Court without giving it further consideration; but we have looked into the case as fully as though the brief and argument were proper.

The facts appearing at the hearing are as follows: About 13 years before the bill was filed, the complainant, who is a barber, erected a 2 1/2-story brick building, 60 feet long and 22 feet wide, on his lot facing south on Belmont avenue and numbered 1114. The building stands 6 inches east of the west line of the lot, and the front room of the first story was fitted up and has been used as a barber shop, and the four rooms in the rear have been occupied as complainant's dwelling. The rooms above the first floor have been rented to tenants. The lot runs back 124 feet from Belmont avenue to an alley 16 feet wide. When the building was erected there was a small coalyard on the lot west of it. In June, 1902, the defendant leased the premises west of complainant's lot and extending north to Melrose street-the street next north of Belmont avenue-including the premises north of the alley. In 1903 it put up a building 60 feet high about 63 feet from the rear of the complainant's house, and in it constructed the hopper complained of. The Chicago & Milwaukee Railroad runs in a northeasterly direction a few feet west of defendant's premises at the northwest corner, and about 75 feet from complainant's lot. A switch track runs from the railroad into defendant's yard for the purpose of unloading. The part of the coalyard west of the complainant's lot is used for storing soft coal, and that part north of the alley for storing and handling hard coal. The soft coal is loaded in wagons by hand, but the hard coal is handled through the hopper. When cars are switched into the yard, an automatic shovel, holding in the neighborhood of 5,000 pounds, takes the coal off the car and deposits it in a pit,...