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(274 Ill. 319)

VOORHEES v. BLUM et al. НЕЕ (No. 10554.) (Supreme Court of Illinois.

and her heirs and assigns shall not, build or suffer to be built upon the south 150 feet of the said above-described property any building or structure except a single detached dwelling June 22, 1916. house, to cost not less than ten thousand ($10,Rehearing Denied Oct. 5, 1916.) 000) dollars."

1. COURTS 93(1)—RULES OF DECISIONRULE OF PROPERTY.

The rule laid down in previous decision, that a covenant in a deed that the grantee should erect only a single dwelling on a lot conveyed does not prohibit the erection of a flat or apartment building, must be adhered to as a rule of property.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 336; Dec. Dig. 93(1).] 2. EVIDENCE 384 PAROL EVIDENCE CHANGING LEGAL MEANING. Where the language of an instrument has a settled legal meaning, its construction is not open to oral evidence.

The deed further provided:

"The said grantors agree with the said Laura C. Voorhees, as the owners of the east 50 feet of lot seven (7) and the west 36 feet of lot six (6) in Clark & Trainer's subdivision aforesaid, that they will not, and their heirs and assigns shall not, build or suffer to be built upon the south 150 feet of said east 53 feet of lot seven (7) and the west 36 feet of lot six (6) any building or structure except two detached dwelling houses, to cost not less than ten thousand ($10,000) dollars each."

July 2, 1915, said Clark and Trainer conveyed to the appellee Levinson a part of lot 6 and the remainder of lot 7, being the premises immediately adjoining and east of those conveyed to appellant, as above set out, 3. COVENANTS 49-CONSTRUCTION-BUILD- the deed containing a covenant similar to the ING RESTRICTIONS.

[Ed. Note.-For other cases, see Evidence, Dec. Dig. 384.]

Limitations and restrictions upon the use of property are not favored, and generally all doubts are resolved against them.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 49; Dec. Dig.

49.]

one first above set out.

[1] It is claimed on behalf of appellees Clark and Trainer that the bill will not lie against them in any event, as it was expected that they would sell and convey to purchas

Appeal from Superior Court, Cook County; ers lots in the subdivision, and having inCharles M. Foell, Judge.

Suit by Laura C. Voorhees against Harry H. Blum and another. From a judgment for defendants, complainant appeals. Affirmed. Harry S. Mecartney, of Chicago, for appellant. Allen G. Mills and H. C. Levinson, both of Chicago (Leo W. Hoffman, of Chicago, of counsel), for appellees.

flat

serted the restrictive covenants in the deed to such purchasers and having parted with title to the lots conveyed to them, they have done all that they could be expected to do and they cannot be enjoined. In the view we take of this case it is not necessary to consider this separate contention made on behalf of Clark and Trainer. The main, and in fact the only, question is whether the CRAIG, C. J. Appellant, Laura C. Voor- restrictive covenants will prevent appellees hees, filed her bill, as complainant, in the Levinson and Blum from erecting a superior court of Cook county, to enjoin Har- building on the lot conveyed to Levinson. ry H. Blum and others from constructing a This question has heretofore been decided flat or apartment building on premises ad- adversely to appellant in the case of Hutchinjoining a lot owned by her in the city of Chi- son v. Ulrich, 145 Ill. 336, 34 N. E. 556, 21 cago, in alleged violation of building restric- L. R. A. 391. In that case it was squarely tion covenants in the deeds of conveyance held that a covenant in a deed which providunder which the respective parties held tied that the grantee in said deed should erect tle to the said lots. The defendants demur- only a single dwelling on each lot conveyed red to the bill and the lower court sustained the demurrer. Appellant elected to stand by her bill, and it was dismissed for want of equity. She perfected this appeal.

by said deed did not prohibit the erection of a flat or apartment building.

It is practically conceded that the case of Hutchinson v. Ulrich, supra, would be deThe assignments of error raise the ques cisive of the issues raised in this case except tion of the sufficiency of the allegations of for an allegation in the bill that there have the bill. From the bill it appears that by been for about 15 years last past two gendeed dated June 30, 1911, Wallace G. Clark eral classes of buildings in the city of Chiand J. Milton Trainer, who were also made cago used for residence purposes, viz.: (1) defendants, conveyed to appellant the east Dwelling houses or residences; and (2) flat 42 feet of lot 8 and the west 3 feet of lot buildings or apartment buildings, and that 7 in Clark & Trainer's subdivision of cer- each of said terms-that is, each of said tain lots in the city of Chicago. Said prem-two classes of terms-has long since, and ises so conveyed to appellant have a frontage for said period of at least 15 years last past, of 45 feet on the north side of Hyde Park boulevard and extend north from said boulevard 207.64 feet. Among other provisions in the deed to appellant is the following:

"As a further consideration of this conveyance the grantee herein agrees that she will not,

had a definite and distinct significance as distinguished from the other in the real estate trade of the city of Chicago and in common and everyday life and intercourse of the people at large of said city; and that by a current and unbroken, invariable, and un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

varying custom for the period last aforesaid not open to oral evidence. Morton v. Babb, the term "dwelling house" or "residence" has 251 Ill. 490, 96 N. E. 279; Butterfield v. indicated a private dwelling constructed for Sawyer, 187 Ill. 598, 58 N. E. 602, 52 L. R. A. the use of one family, and the term "flat" 75, 79 Am. St. Rep. 246; Fowler v. Black, or "apartment" has indicated a dwelling 136 Ill. 363, 26 N. E. 596, 11 L. R. A. 670. apartment in a building constructed for the The decision in Hutchinson v. Ulrich, supra, use of more than one family. There is no has been consistently followed by this court allegation in the bill that the words "dwell- since it was first announced, and has been ing house," "residence," "flat building," and cited with approval not only by the courts "apartment building" have any other or dif- of this state but of other jurisdictions, and ferent meaning in the city of Chicago from has become a settled rule of real property in the meaning the same words have at any Illinois. There are cases in which a conother place in this state, nor do we think trary doctrine is announced, but in our opinthat such a claim could be made. These ion the great weight of authority is in acterms are now, and for more than 15 years cordance with the views expressed in Hutchhave been, in general and common use and inson v. Ulrich, supra, McMurtry v. Philare generally understood, and so far as we lips Investment Co., 103 Ky. 308, 45 S. W. are advised have always had the same mean- 96, 40 L. R. A. 489; Reformed P. D. Church ing everywhere. It was pointed out in the v. Building Co., 214 N. Y. 268, 108 N. E. case of Hutchinson v. Ulrich, supra, that, at 444; Johnson v. Jones, 244 Pa. 386, 90 Atl. the time the deed was executed which was 649, 52 L. R. A. (N. S.) 325; Hays v. St. Paul construed in that case, "flats or apartment M. E. Church, 196 Ill. 633, 63 N. E. 1040; houses, where several families could reside, Cochran v. Bailey, 271 Ill. 145, 110 N. E. were common in Chicago; such buildings 812. had been erected and were then in use within a short distance of these lots"-the lots in controversy in that case.

It is not claimed, and cannot be claimed, that the term "flat" or "apartment house," as used in the pleadings in this case, has any different or other meaning from what it had when the opinion in Hutchinson v. Ulrich was announced, and that was in 1893. In that case, in determining whether evidence outside the deed itself could be received to show the meaning of such term, the court said, on page 342 of 145 Ill., on page 557 of 34 N. E. [21 L. R. A. 301] of the opinion:

[3] Another rule that must be taken into consideration is that limitations and restrictions upon the use of property are not favored. Where the intent is clearly manifested such restrictions will be enforced by the courts; but as a general rule all doubts are to be resolved against them. Hays v. St. Paul M. E. Church, supra; Eckhart v. Irons, 128 Ill. 568, 20 N. E. 687; Loomis v. Collins, 272 Ill. 221, 111 N. E. 999.

Much has been said by counsel for the appellant about the undesirability of flats as compared with dwellings for single families. We are forced to believe from his argument that much would depend upon the particular "On the hearing, a large number of affidavits flat or dwelling which would be built in each of architects, real estate men, and loaners of individual case. There is no inflexible rule money on real estate were presented by the re- for the designing and building of either flats spective parties for the purpose of showing the meaning, in the city of Chicago, of the words or single residences and there are all kinds contained in the deed. These affidavits were and varieties of each. All would depend upexcluded by the court, and we fully concur with on the individual case. Conceding, however, the circuit court in its decision. The words that flat buildings are undesirable from any 'only a single dwelling' are not words of art, nor does it appear that there is any usage or point of view, it would have been an easy custom in Chicago under which such words have matter, had the parties intended and desired a local meaning in Chicago, and hence we are to prohibit the erection of flat buildings, to aware of no rule under which witnesses could insert a clause in the deeds positively progive their opinions whether a flat could be included within the words used or not. The in-hibiting the erection of a flat or apartment tention of the parties must be determined from building within the subdivision. In the rethe language of the deed itself, considered in cent case of Loomis v. Collins, supra, we had connection with the surrounding circumstances under consideration, among other things, the at the time the deed was executed. Only a single dwelling is to be constructed or placed upon following provision in a deed: each 50-foot lot. Does the word 'single' apply to the building, or the use which should be made of the building when constructed? The question is one which is not entirely free from doubt, but we are inclined to the opinion that the word 'single' referred to the structure. The word 'single' signified one building."

[2] We think the words "flat," "apart

"It is understood and agreed as a part of the consideration above expressed that no flat building or apartment house, or any building other than a private dwelling house such as is usually designed and built for the use and occupancy of a single family, shall for a period of twenty-five years from May 1, 1906, be constructed or placed on said premises."

ment" and "dwelling house" have the same In view of the meaning of the language meaning now that they had when the opinion employed in the restrictive covenants relied in Hutchinson v. Ulrich, supra, was written. on by appellant in the deeds in question, as Where the language of the instrument has such language has been construed by this a settled legal meaning, its construction is court, on which construction appellees as

well as appellant had a right to rely, we must hold that appellees are not prohibited thereby from erecting a flat building.

Morton T. Culver, of Chicago, for appellant. Harry F. Atwood and Arthur E. Wallace, both of Chicago (Samuel A. Ettelson, Corp.

The judgment of the superior court will Counsel, of Chicago, of counsel), for appellee. be affirmed.

Judgment affirmed.

(274 Ill. 308)

CITY OF CHICAGO v. MATTESON. (No. 10621.)

(Supreme Court of Illinois. June 22, 1916. Rehearing Denied Oct. 5, 1916.)

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1. EMINENT DOMAIN 221 STREET IM-
PROVEMENT ASSESSMENTS STATUTE
JURY.
Under Local Improvement Act, § 12, as
amended in 1913 (Hurd's Rev. St. 1913, c. 24,
§ 518), relating to proceedings for making com-
pensation for the taking or damaging of prop-
erty, the objection that any property was as-
sessed more than its proportion of the cost must
be submitted to the jury.

[Ed. Note.-For other cases, see Eminent Do-
main, Cent. Dig. §§ 560, 561; Dec. Dig.
221.]

2. EMINENT DOMAIN 224-ASSESSMENT OF BENEFITS-VERDICT-RANGE OF TESTIMONY. In a condemnation proceeding to open a street through defendant's lot, where defendant's witnesses testified that her property would not be benefited by the improvement and the city's witnesses testified that the benefit to defendant's property would be $2,640, resulting in an assessment of $528, that the property would be benefited $5 per front foot, and that the benefit would be $1,800, and that all the other property on that street would be benefited $2.000, a verdict confirming a commissioner's assessment of benefits at $1,800 did not come within the range of the testimony, so that de

fendant was entitled to a new trial.

COOKE, J. Laura A. Matteson, the appellant, is the owner of a certain lot in Sheffield's addition to Chicago. This lot extends from Perry street on the east to Ashland avenue on the west-a distance of about. one-eighth of a mile. The lot is 132 feet in width. Its north line is 231 feet south of and parallel with the south line of Diversey parkway (the first street north of the lot) and its south line is about 892 feet north of the north line of Wrightwood avenue (the first street south of the lot). Bosworth avenue is a street running north and south about midway between Perry street and Ashland avenue. It extends north from Wrightwood avenue to the south line of appellant's lot, and again beginning at the north line of appellant's lot continues north to Diversey parkway. On December 17, 1913, the city council of the city of Chicago adopted an ordinance, in conformity with a recommendation made by the board of local improvements, providing that Bosworth avenue be opened from Wrightwood avenue to Diversey parkway by condemning therefor the east 66 feet of the west 328.33 feet of appellant's lot; that upon the entry of an order by the court in which the proceeding contemplated by the ordinance shall be pending, granting to the city the right to take possession of or damage the property sought to be taken and in respect to which compensation shall have been made and deposited as required by law, the com

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 574-579; Dec. Dig. missioner of public works should forthwith 224.]

3. EMINENT DOMAIN

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205-ASSESSMENT OF

BENEFITS EVIDENCE. In a condemnation proceeding involving the issue as to the correctness of the assessed benefits, the report and assessment roll, though in evidence, were not to be considered as the testimony of any witness, and were not entitled to the weight of the testimony of a witness in arriving at the verdict.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 544; Dec. Dig. 205.] 4. WITNESSES 317(1)-FALSE TESTIMONYEFFECT.

remove any building or any part thereof, or any other obstruction which might be located upon said land, and should forthwith put the surface of the land taken for the opening of said street in such condition that it can be used for public travel, said work to be paid for out of the general funds of the city; that said improvement should be made and the just compensation for property to be taken or damaged therefor be ascertained and the whole cost thereof be paid for by special assessment, in accordance with the provisions of the Local Improvement Act. Thereafter, on January 21, 1914, a petition was filed in the county court of Cook county by the city of Chicago praying that steps be taken to ascertain the just compensation to be made for private property to be taken or damaged for the proposed improvement and to ascertain what property will be benefited by such improvement and the amount of Condemnation proceeding by the City of benefits. Commissioners appointed by the Chicago against Laura A. Matteson. From a court fixed the value of the appellant's land judgment on the verdict fixing the compensa- to be taken at $2,000 and reported that there tion for defendant's lands and the assessment would be no damage to property not taken. of benefits against the remainder, defendant The commissioners' assessed $1,800 against appeals. Reversed, and cause remanded. the remainder of appellant's lot not taken

In such proceeding, the jury, if it believed from the entire testimony and from an inspection of the premises that any witness had diminished or belittled the value of the land taken, had a right to disregard the evidence of such witness on that subject.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 1080; Dec. Dig. 317(1).]

Appeal from County Court, Cook County; S. N. Hoover, Judge.

it is objected that any property is assessed more than its proportionate share of the cost this issue must be submitted to the jury. Village of Des Plaines v. Winkelman, 270 Ill. 149, 110 N. E. 417. In this case this objection was made, and this issue was submitted to the jury, who found that the property of appellant had not been assessed more than its proportionate share of the cost of the' improvement.

[2] Appellant's witnesses testified that her property would not be benefited by the improvement. Appellee called three witnesses, one of whom testified that the benefit to the property on both sides of Bosworth avenue by reason of the opening of the street would be $10,000 and that the benefit to appellant's property would be $2,640. According to this witness, as the benefit would be $10,000 and

as the amount of benefits that would be derived from the improvement, and assessed the remaining $200 against 45 other lots and tracts of land, 35 of which front on those portions of Bosworth avenue which had been theretofore opened for travel and the remaining 10 on Diversey parkway; the assessments against these lots and tracts ranging from 50 cents to $10 each. Appellant filed objections to the award and assessment made by the commissioners. The legal objections attacking the ordinance providing for the improvement were heard by the court and were overruled, and a jury was impaneled to try the issues presented by the objection that the assessment against the part of appellant's lot not taken exceeds the benefits which will accrue to it from the proposed improvement, and the objection that appellant's property was assessed more than its proportionate the cost of the improvement $2,000, each share of the cost of the improvement. After tract should be assessed one-fifth of the total the formal proof had been made by the peti- amount of benefits, which would result in tioner, the jury viewed the premises. Upon an assessment of $528 against the property their return the appellant offered evidence of appellant. The second witness called on tending to show that her lot is best adapted behalf of appellant testified that the properfor use as an entire tract for manufacturing ty on both sides of Bosworth avenue from or industrial purposes, and that cutting the Diversey parkway to Wrightwood avenue lot into two tracts, separated from each oth- will be benefited from $2 to $5 per front er by a street, will be a great damage to the foot. While he testified that appellant's part not taken. The petitioner, on the other property will be benefited more than any hand, offered testimony tending to show that other, he places $5 per front foot as the appellant's lot is best adapted for residence maximum benefit to be received by any of purposes, and that the opening of Bosworth the property. Assuming that appellant's avenue through the lot will increase the value property is benefited $5 per front foot and of the land not taken for residence purposes all the other property $2 per front foot, the more than the amount assessed against it verdict is not sustained by the testimony of for benefits. All of the witnesses agree that this witness. The third witness testified opening the street through appellant's lot that the benefit to appellant's property will will greatly benefit the property fronting be $1,800, and that all the other property upon those portions of Bosworth avenue fronting on Bosworth avenue will be benefitheretofore opened for travel. The jury re-ed $2,000. This was all the testimony on turned two verdicts. By one they fixed the this issue, and it is apparent therefrom that just compensation to be paid appellant for land taken at $2,000. By the other they found the issues for the petitioner, and further found that appellant's property has not been assessed more than it will be benefited nor more than its proportionate share of the cost of the improvement. After overruling motions for a new trial and in arrest of judg- "The court instructs the jury that the report ment, the court rendered judgment on the and assessment roll, while admitted in evidence, verdicts. From that judgment Laura A. Mat-witness and is not entitled to the weight of the is not to be considered as the testimony of any teson has prosecuted this appeal.

The legal objections were properly overruled. We do not regard the reasons advanced in support of the legal objections of sufficient importance to warrant a discussion on this phase of the case.

[1] The appellant concedes that there was evidence that her property would be benefited to the extent of the amount assessed against it, but insists that the finding that her property has not been assessed more than its proportionate share of the cost of the improvement is contrary to the evidence. Under the provisions of the Local Improvement Act, since the amendment of section 12 in 1913, if

the verdict of the jury does not come within the range of the testimony of the witnesses. The court therefore erred in refusing to grant the motion for a new trial.

[3] Complaint is made of the refusal of the court to give the following instruction on behalf of appellant:

testimony of a witness in arriving at your verdict in this case.'

99

Under the holding in City of Rockford v. Mower, 259 Ill. 604, 102 N. E. 1032, this instruction was proper and should have been given.

[4] It is also complained that the court erred in refusing to give appellant's offered instruction No. 2. This instruction stated' that if the jury believed, from the entire testimony and from their inspection of the premises, that any witness had diminished or belittled the value of the land taken, they had a right to disregard the evidence of such witness on that subject. This instruction

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Action by Alonzo B. Lord and others. against the City of Chicago. Judgment for the defendant sustaining a demurrer to the declaration, and plaintiffs appeal. Affirmed.

Frank E. Lord and Wilkerson, Cassels & Potter, all of Chicago (William Dillon and E. H. Cassels, both of Chicago, of counsel), for appellants. Samuel A. Ettelson, Corp. Counsel, of Chicago (John H. Passmore, Alfred O. Erickson, and Clifford G. Roe, all of Chicago, of counsel), for appellee.

DUNN, J. The appellants began an action on the case against the city of Chicago, in damages caused to their real estate by the the superior court of Cook county, to recover elevation of the tracks of the Chicago & Western Indiana Railroad Company in acCordance with the requirements of an ordinance of the city. A demurrer was sustained to the declaration. The suit was diswas rendered a judgment missed, and against the plaintiffs, from which they have appealed.

The declaration contained three counts, from which it appeared that the appellants owned certain real estate adjoining the right of way and tracks of the Chicago & Western Indiana Railroad Company, on which they had erected and were maintaining an elevator and public warehouse for the reception, storage, and shipping, in carload lots, of grain. The elevator was connected with the railroad by a switch at the existing grade of the

PROPERTY-RIGHT OF RECOVERY. Under Const. art. 13, § 5, imposing upon railroads transporting grain the duty to deliver to any consignee or elevator and of permitting connections with their tracks, and Laws of 1909, p. 307, requiring carriers of freight to maintain side tracks for shippers, a change of grade made in good faith in obedience to an ordinance passed in the exercise of the city's police power cannot be made the basis of a claim for damages by an abutting owner for the loss of switch track connections which the railroad had made, since while its business is affected with a public interest a railroad company is still a private corporation and, except in discharge of its duties as a common carrier, owns its property free from any rights of adjoining proprietors, the same as an individual. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 270; Dec. Dig. 101(2).] | railroad as established by the city. After3. EMINENT DOMAIN 121 GRADE-DAMAGES ORDINANCES. An ordinance requiring a railroad company to elevate its tracks opposite an abutting owner's property, and providing that the city pay damages to property caused by the ordinance, did not give any new rights to damages; its purpose being only to determine whether the city or the railroad company should pay damages that might be legally recoverable.

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CHANGE OF

ward the city passed an ordinance requiring the railroad company to elevate its tracks 72 feet opposite the appellants' property, and providing that the city should pay all damages to property caused by the track-elevation ordinance. The tracks of the railroad company were accordingly elevated 71⁄2 feet, and in doing so the appellants' switch track was torn up and destroyed, and it is impos[Ed. Note.-For other cases, see Eminent Do- sible to construct a new switch track to the main, Cent. Dig. 88 320-324; Dec. Dig. building of the appellants as it is constructed, so that the building cannot be used as an 4. EMINENT DOMAIN 101(2)-CONSTRUC-elevator and public warehouse. The buildTION OF CONSTITUTIONAL PROVISIONS-RAILROADS AS "PUBLIC HIGHWAYS.'

121.]

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Under Const. art. 11, § 12, declaring railroads public highways free to all persons for the transportation of persons and property thereon, although a railroad is a public highway in the restricted sense that all persons have an equal right upon it for travel and the carriage of their goods and is subject to control so far as its relations to the public are concerned, by the state and federal governments, as far as the ownership of the railroad and the liabilities arising out of such ownership are concerned, it is private property, and the principles applying to a change of grade of ordinary highways do not apply.

ing is substantially a total loss to its owners and the land has depreciated in value.

The appellants base their right to a recovery, first, upon the provision of section 5 of article 13 of the Constitution which imposes upon all railroad companies receiving and transporting grain the duty to deliver it to any consignee thereof or to any elevator or public warehouse to which it may be consigned, and the duty of permitting connections to be made with their tracks, so that any consignee and any public warehouse, coal bank, or coal yard may be reached by the cars on the said railroad; second, on the act of the General Assembly requiring common carriers of freight to provide and mainAppeal from Superior Court, Cook County; tain side tracks or switch connections for William E. Dever, Judge.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 270; Dec. Dig. 101(2). For other definitions, see Words and Phrases, First and Second Series, Highway.]

shippers and receivers of freight, approved

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