Appeal from the Circuit Court of Cook county; the Hon. FRANK
R. LEONARD, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Plaintiffs filed a complaint for a declaratory judgment to determine the right of defendants to maintain advertising signs on the exterior surface of a party wall. The declaratory judgment was entered; defendants appeal and plaintiffs cross appeal.
The party wall in question forms the east wall of plaintiffs' five story building and the west wall of defendants' one story garage. These buildings are located at 317-25 West Randolph Street in Chicago. The advertising is located on the exposed portion of the wall above the garage.
Early in 1955, plaintiffs permitted a political campaign sign to be painted on the party wall without objection from defendants. The sign was obliterated in April, 1955. Thereafter, in August, 1955, defendants erected the advertising signs in question which have been maintained on the wall since that time.
After the removal of a building from what is now defendants' property, the predecessors in title executed an agreement concerning the party wall and also defined the rights of the respective parties. However, no mention was made of using the wall for advertising purposes.
The pertinent part of the party wall agreement reads:
"1. Said wall is to be and remain a party wall in all respects.
"2. First party [Plaintiffs' predecessor] shall be entitled to . . . maintain the same in a safe and sightly condition for its use in connection with the building of said first party. . .
"6. . . . Second party [Defendants' predecessor], subject to the terms hereof, shall have the right to make any reasonable use of said wall which shall not interfere with or lessen the present use thereof by first party or render the same unfit or unsafe for use as a party wall. . . .
"9. This agreement shall be and become the only agreement covering the rights of the parties in and to said wall."
The declaratory judgment stated that defendants had no right to maintain signs or other advertising matter on the exterior surface of the party wall without the consent of plaintiffs; that plaintiffs must likewise obtain the consent of defendants before they placed advertising on the wall; that any past or future income earned for the advertising should be equally shared between the parties.
Plaintiffs contend that a proper construction of the party wall agreement would preclude defendants' use of the wall for advertising purposes; that only a structural use was contemplated under the agreement; and that party wall owners are not tenants in severally but tenants in common. Under the latter concept one party's placing advertising on the wall is improper since the other party is thereby prevented from making a similar use of the wall.
The rule is well settled in this state that party wall owners are tenants in severally. In Ingals v. Plamondon, 75 Ill. 118, the court said at page 123 that:
"Land covered by a party wall remains the several property of the owner of each half but the title of each owner is qualified by the easement to which the other is entitled of supporting his building by ...