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Hebenstreit v. Consolidated Coal Co.





Appeal by defendant from the Circuit Court of St. Clair county; the Hon. QUINTEN SPIVEY, Judge, presiding. Heard in this court at the October term, 1954. Order affirmed and cause remanded for further proceedings. Opinion filed November 10, 1954. Rehearing denied December 16, 1954. Released for publication December 17, 1954.


Rehearing denied December 16, 1954.

A temporary injunction order entered by the circuit court of St. Clair county restrained defendants from continuing certain drilling operations in an area protected by a residential restrictive covenant. Defendant coal company appeals from such order contending primarily that their activity was not in violation of such covenant and that plaintiffs' complaint failed to state a cause of action.

The evidence revealed that about 40 years ago the defendant coal company mined coal underlying the surface area which was subsequently platted and developed as Oak Hills Subdivision. The mine workings had been abandoned and the mine shafts sealed for over 20 years. Consolidated Coal Company is also presently defending a separate action at law pending in the circuit court of St. Clair county brought by the plaintiffs in the injunction action who are residents of the subdivision, seeking substantial damages for injury to their property said to have resulted from an alleged subsidence of the old mine workings. Defendant alleged in the damage action that there was no practical available access to the mine workings other than drilling from the surface to the abandoned workings below, and filed a motion under Rule 17 of the Rules of the Supreme Court of Illinois [Ill. Rev. Stats. 1953, ch. 110, § 259.17; Jones Ill. Stats. Ann. 105.17] for an order permitting it to go upon plaintiffs' premises and make necessary soil tests to obtain facts as to the alleged subsidence. This motion was denied. Thereafter the company purchased Lot 54 in the subdivision and commenced a drilling operation designed to penetrate to the abandoned workings 225 feet below to determine whether there were fractures in the subsoil and whether a soil subsidence had occurred. The company's proof showed that soil experts could ascertain from core samples of the soil whether there was a subsurface soil movement and if so the causes thereof. The drilling was under the supervision of a specialist in soil mechanics and was alleged to be of a type not uncommon even in residential areas where knowledge of the soil substrata is desired before building operations are started.

The first drilling operation continued for 17 days in October-November 1953, and was abandoned as unsuccessful. A second hole was started in December but after two or three days the plaintiffs obtained a temporary injunction without notice restraining further drilling. Defendant's motion to dissolve this injunction was granted in March 1954. Thereafter, on April 26, 1954, a third drilling operation was started. This drilling was stopped 2 1/2 days later by the temporary injunction order here appealed from, which order was entered after notice and hearing of evidence for several days.

Plaintiffs contended that such drilling violated a certain building restriction applying to all lots in the subdivision, which covenant was as follows:

"a. The lot (Lot 54) hereby being conveyed is restricted to the construction of a one family dwelling house or multiple family building to be used for dwelling purposes only.

"b. No sewage disposal plant shall be constructed so that any of the overflow will reach the surface of the earth, and all lots must be kept clean of all garbage, rubbish or refuse of any kind.

"c. Each and all the restrictions and covenants herein set out shall run with the land herein being conveyed and shall be binding upon the grantees and their heirs, administrators, executors, successors and assigns of the grantees herein.

"d. Each and all of the restrictions and covenants herein contained shall be for the benefit of the grantors and their successors in title and assigns and any and all of said restrictions and covenants may be enforced either in law or in equity, by any one or any number or all of the persons who may from time to time be the owner or owners of lots in `Oak Hills Annex.'"

They also contended that the drilling was noisy, unsightly and disturbing and constituted a nuisance. This contention was supported with testimony on the part of the residents in the subdivision that the constant hammering of the trip hammer during working hours together with all the noise and disorder of the operation have made their homes and the area in general disagreeable and unpleasant as places of abode.

It appears from the evidence that the drill rig is attached to a truck and stands approximately 28 feet high. The drilling process in this case consisted of driving a pipe or casing into the ground through the loose subsoil for a distance of 95 feet. This casing was driven into the ground with a 350-pound trip hammer. The hole was then drilled with a rotary drill driven by a 24-horsepower gas engine; another gas engine pumped water to the diamond drill head to keep it from getting too hot. Testimony as to the noise these engines made varied, but it appeared to be somewhat louder than a power lawn mower but less than a cement mixer or bulldozer. At the time of the hearing, testimony on defendant's behalf indicated that they had stopped driving the casing at 95 feet, and that the drill head at that time was down to 182 feet, within 32 feet of the old mine workings where the drilling operation would cease. The drilling to this point had taken 3 1/2 days. For the first two days of the third drilling operation the water after being used was permitted to run off the lot carrying bits of rock and clay onto the surrounding property. At the time of the hearing, however, defendant, was keeping the water in an 8-foot by 4-foot pool by the drill and was carefully recirculating it so as to avoid damaging surrounding property. The plaintiffs introduced testimony of other disturbing and annoying aspects of the drilling operation in support of their charge of nuisance which conditions defendant contended could and would be avoided in finishing the work. The temporary injunction ordered to issue by the trial court on May 1, 1954, restrained defendants from continuing the drilling operation and from

"continuing a nuisance by permitting water and foreign impurities such as clay, rock, etc., from running over public streets in the Subdivision, over the premises of plaintiffs' and lot owners in the subdivision and are further temporarily enjoined from committing a nuisance of usual (sic) and exorbitant noises in the form of pounding, banging of machinery and running of engines in connection with drilling operations which are obnoxious to the public."

At the time this temporary injunction was issued, the lower court was confronted with the following: The pleadings were not settled; the defendant was continuing to drill and probably would complete its operations before the pleadings were concluded and final hearing had; and the case was one of first impression. While many cases involving restrictive covenants have been published in the court reports, our search has revealed no decision analogous to the case at bar. All of the cases examined have dealt with erection, ...

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