Cochran v. Bailey , 271 Ill. 145 ( 1915 )

Mr. Justice Cartwright

delivered the opinion of the ■court:

The circuit court of Cook county sustained the demurrer of the appellee, Robert R. Bailey, to the amended bill in equity filed by the appellants, John R. Cochran and Isola Belle Cochran, his wife, to enjoin the appellee from erecting a bungalow on the rear of lots i and 2 in block 13, fronting on Eighth street, in the village of Wilmette, and dismissed the bill for want of equity.

The facts alleged in the amended bill and admitted by the demurrer are as follows: In 1872 Greenleaf and Morse were the owners of block 13 and other blocks in the village of Wilmette and caused a plat of their subdivision of the same to be made and filed for record. Block 13 is bounded on the north by Linden avenue, on the east by Eighth street, on the south by Oakwood avenue and on the west by Ninth street. There is a tier of lots on the north side fronting on Linden avenue and a tier on the south side fronting on Oakwood avenue, and between these two tiers of lots there are lots fronting on Eighth and Ninth streets. The block consists of twenty-six lots, and lots 1 to 9, inclusive, front on Linden avenue, each having a frontage of 50 feet on the avenue and a depth of J90 feet to an alley 20 feet wide at the rear. Lots 18 to 26 front on Oakwood avenue, with a like frontage and depth to an alley of the same width in the rear. Between the two alleys, lots 14 to 17 front on Eighth street and lots 10 to 13 front on Ninth street, each with a frontage of 50 feet and a depth of 210 feet to an alley 30 feet wide connecting with the other alleys. On October 30, 1907, Northwestern University was the owner of lots 1 to 9, and on that day executed the following instrument in writing:

“Whereas, Northwestern University, a corporation organized under the laws of the State of Illinois, is the owner of lots 1 to 9, inclusive, in block 13, in Greenleaf & Morse’s subdivision of blocks 12, 13, 15, 16, 19 and 21, in the village of Wilmette, in Cook county, Illinois, being all of the lots fronting north on Linden avenue between Eighth and Ninth streets, in said village, and is desirous of establishing the status .of said lots as high-class residence property; now, therefore, by this instrument said Northwestern University does hereby establish and declare that no building shall be constructed on said premises, or any part thereof, the north wall of which shall extend beyond and north of a line drawn 40 feet south from and parallel with the south line of said Linden avenue, save that ordinary bay windows, porches and steps appurtenant to any house, the north wall of which shall be located south of said line, shall be permitted to extend north of such line. The above restriction shall continue until the owners of all of the above described lots shall by written instrument abrogate or modify it.”

The instrument was filed for record on November 4, 1907, and when it was made the entire village was subdivided, and the lots, except in the business portion, were not less than 50 feet in width. The property, generally, in the village was high-class residence property and has since rapidly increased in value and desirability as such. The complainants are owners of lot 3 by virtue of a warranty deed from Northwestern University made on December 17, 1909, and have erected thereon a modern high-class nine-room residence, which is occupied by them, with their children, as a home. All of the lots fronting on Linden avenue have been sold, and the owners have not abrogated or modified the restriction contained in the instrument of October 30, 1907. The owners of lots 4, 5, 6 and 7 have also improved the same with modern high-class residences, and they and the complainants have strictly conformed to the provisions of the instrument imposing the restriction of the building line and have erected on each a. single dwelling house. The space in the rear of the residences forms a large rectangle, on which are growing large and beautiful trees of great age, and each of the residences has a sun-parlor or glazed porch on the south side, affording a view of the rectangular space and a view to the east and west across the rear end of the lots. On March 26, 1915, the defendant became the owner of lots 1 and 2 for a consideration of $6000 paid by him, and afterward began the erection across the rear end of said lots of a one-story residence of the bungalow type, fronting on Eighth street, 35 feet west of the street line, 10 feet north of the alley and occupying a space of 41^ feet by 42^ feet, the west side of the porch at the rear being feet east of the east line of complainants’ property. The complainants filed their original bill to enjoin the erection of the bungalow, and afterward the defendant began the erection of a dwelling house on lot i and another on lot 2, fronting on Linden avenue. That fact was alleged in the amended bill but no objection was made that the defendant was not conforming to the building line. The only controversy was about the erection of the bungalow fronting on Eighth street. The erection of the bungalow will damage and depreciate in value the complainants’ property.

The design of Northwestern University, as expressed in the instrument executed by it, was to establish the status of the lots fronting on Linden' avenue as high-class residence property, and for that purpose it imposed the restriction that no building should be erected nearer than 40 feet from the south line of the avenue, with the exception of ordinary bay windows, porches and steps. There has been no violation of that restriction, and the question is whether the instrument, by implication, created any other limitation upon the use of the lots as residence property. In determining that question the settled rule is, that if the intention of the parties to create a restriction is clearly manifest it will be enforced in a court of equity, but restrictions on the use of property owned in fee simple are not favored, and doubts will be, in general, resolved against them. (Behart v. Irons, 128 Ill. 568; Hutchinson v. Ulrich, 145 id. 336; Hays v. St. Paul M. E. Church, 196 id. 633; Curtis v. Rubin, 244 id. 88; Hartman v. Wells, 257 id. 167.) A fee simple title implies an unlimited right of user, and restrictions upon the use by contract will not be enlarged or extended by construction. A case illustrating the application of the rule is Hutchinson v. Ulrich, supra. In that case the owners of lots were confined to the erection of a single dwelling, only, on each lot or 50 feet, and the owner of two lots commenced' tO' erect on them a flat or apartment building'four stories high, with a partition on the line between the buildings. The court quoted from Bckharf v. Irons, supra,, the rule that public policy was contrary to the hampering of real estate with restrictions' and prohibitions as to its use, and hence, in the construction of deeds containing restrictions and prohibitions as to the use of property, all doubts should, as a general rule, be resolved against the same. The court held that while nothing but dwelling houses could be erected, the restriction did not prohibit the erection of, a flat. It was considered that if the parties intended to prohibit the erection of a flat, or that a dwelling house should be used only for the private use of one family, they should have said so. When Northwestern University executed the instrument in question there were many things that would affect the lots as high-class residence property, such as the erection of buildings of a less value than some specified sum, or of a certain height •or dimensions, or of flat or apartment buildings. The erection of a cottage of little value and no pretension to artistic style, or of a bungalow, or of a flat or apartment house covering the entire lot south of the building line, would seriously affect the value of the other residences as high-class residence property. One can readily appreciate the annoyance, irritation and disappointment resulting from the erection of either of the buildings specified, resulting -in injury ito the other residence property, but the general expression of the intention to preserve property as high-class residence property would not prevent the erection of áuch buildings. Northwestern University specified in the instrument the only particular by which its expressed design to establish the status of the lots as high-class residence property was to be effected. The erection of a bungalow is a legitimate use of property for residence purposes, and while the result in this case is admitted tO' be a damage to the complainants’ property, the defendant was in the exercise of a right pertaining to the ownership of property which has not been taken from him.

It is argued that the erection of this bungalow fronting on Eighth street amounts to a vacation of that part of the plat, to the injury and damage of other proprietors. But manifestly that is not true. The most that can be said is, that if it should be conveyed it would have the same effect as a re-subdivision of lots i and 2. But if that is so, the owner has a right to malee such a re-subdivision as he may choose. Universal practice, the recognized rights of owners, and the statute, permit such a re-subdivision.

The decree is affirmed.

Decree affirmed.