Wolf v. Schwill

• Decision Date: 10 October 1919
• Docket Number: No. 12688.,12688.
• Citation: Wolf v. Schwill, 289 Ill. 190, 124 N.E. 389 (Ill. 1919)
• Parties: WOLF v. SCHWILL et al.
• Court: Illinois Supreme Court

289 Ill. 190

124 N.E. 389

WOLF

v.SCHWILL et al.

No. 12688.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 10, 1919.

Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Suit by Anna A. Wolf against M. Beatrice Schwill and another. From decree dismissing the bill, plaintiff appeals. Reversed and remanded, with directions.

Thompson, J., dissenting.

Scott, Bancroft, Martin & Stephens, of Chicago (John E. MacLeish, of Chicago, of counsel), for appellant.

Stein, Mayer & David, of Chicago (Elias Mayer and Sigmund W. David, both of Chicago, of counsel), for appellees.

CARTWRIGHT, J.

By the decision in Wolf v. Schwill, 282 Ill. 189, 118 N. E. 414, this court affirmed a decree of the circuit court of Cook county enjoining the appellees, M. Beatrice Schwill and Julius Schwill, her husband, from maintaining a wall erected on the north 18 feet of the ground between their residence, and that of the appellant, Anna A. Wolf, in violation of a building line restriction to which all the grounds were subject, and requiring appellees to remove the same. The appellees complied with the decree by removing the brick wall, but substituted a wooden structure consisting of eight box columns 7 feet 3 inches high from the sidewalk line, with palings between, close together, 6 inches wide and 6 feet and 3 inches high from said sidewalk line. The columns at the base are about 2 feet square, the body 21 inches square, and the cap 24 inches. For 23 inches above the sidewalk there is no opening. Above that there is a 1 1/2-inch opening part way to the top, and the rest of the way there is a one-half inch opening. Near the top there are round holes 2 inches across, and the edges of the palings are beveled where there are openings, and the tops are beveled off. The appellant filed a supplemental bill to enjoin the appellees from maintaining this structure and to compel its removal. Upon a hearing the bill was dismissed for want of equity, and an appeal was allowed and perfected.

The building line restriction was quoted in Wolf v. Schwill, supra, and prohibits a building or structure of any kind within 18 feet of the north line of the premises, except only bay windows, verandas, porches, fences, or similar structures, and the present dispute is whether the wooden structure is within he terms of the restriction. It is not quite as high as the brick wall, but accomplishes practically the same purpose. The record contains photographs offered in evidence by the respective parties illustrating the possibilities of the photographic art, one set representing a structure in great magnitude and towering proportions, and the other a diminutive object; but there is no controversy as to the character or dimensions as given above. The argument for the appellees is that the structure is a fence, and therefore permitted by the covenant, that, being a foot lower than the brick wall, it does not cut off appellant's view as much as the wall did, and that appellant has not really been injured, because, while she before had an unobstructed view of the street and cannot see as much of it as she could before, her view then was across a barren spot of ground, and now she can look into the Italian sunken garden, which must give her esthetic pleasure. Counsel are correct in saying that the wooden structure replacing the brick one is within the meaning of the word ‘fence,’ and so is a palisade or similar structure for the protection of an inclosure like a paddock or an amusement park, fair ground, or similar place for public entertainment to which an admission fee is charged, and where the object of the structure is to exclude the public generally and admit only those who pay the required admission fee. The covenant is to be interpreted, if possible, so as to carry out what the parties meant, and whether that kind of a fence was intended is to be determined by settled rules of law for the construction of...