APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1959.
This is a direct appeal by both plaintiffs and defendants from a decree of the circuit court of Cook County allowing plaintiffs damages for a roof drainage system removed by defendants, but denying plaintiffs' request for a mandatory injunction to compel defendants to remove such portion of their building as encroaches on plaintiffs' property and destroys plaintiffs' easement for rain gutters and downspouts.
The issues are essentially whether the mandatory injunction was properly denied under the circumstances of this case, and whether the measure of damages, limited to the cost of installing a drainage system similar to that originally enjoyed by plaintiffs, was proper.
From the record it appears that since June 9, 1925, plaintiffs Saverio Ariola and Susanna Ariola were owners in joint tenancy of the property at 818 N. Twenty-third Avenue, Melrose Park, which was improved with a two-story house occupied by them and their children, the other plaintiffs herein, as a family home.
The Ariola property fronts on Twenty-third Avenue and extends west for a distance of approximately 50 feet along Iowa Street on the north, and for 51 feet along Lake Street on the south. Immediately to the west of the Ariola property is the Nigro property, held in joint tenancy by defendants. This property, known as 2305 Lake Street, fronts on Lake Street, and extends along that street for some 77 feet 3 1/2 inches, and along Iowa Street on the north for some 75 feet 1 3/4 inches. The property was improved with a one-story building, until October, 1948, when defendants commenced construction of an addition.
According to the testimony of defendants' mason contractor, he excavated right up to plaintiffs' building foundation, put in forms only on one side and poured concrete flush against plaintiffs' foundation, so that the east part of defendants' foundation is flush with the west part of plaintiffs' building.
Special surveys made at plaintiffs' request by registered surveyors before defendants' brick work was superimposed, indicated that defendants' foundation encroached upon plaintiffs' property to the extent of 1 inch at the northeast corner of defendants' foundation and some 2 3/8 inches at the southeast corner of the foundation. Plaintiffs thereupon notified defendants of the encroachment and requested them to discontinue construction. Notice was also given by plaintiffs' attorney to defendant Nigro and to his attorney. Nevertheless, defendants proceeded with the construction of the two-story brick addition, which according to plaintiffs' surveys also encroached to the same extent above ground level. Defendants, however, deny any such encroachment, and their mason contractor testified that the village markers were followed, and that plaintiffs' foundation was irregular and encroached on defendants' property.
It appears further from defendant Daniel Nigro's testimony as an adverse witness that before construction began he had notified plaintiffs that defendants would occupy all of their property, and that it would be necessary for plaintiffs to remove their projecting gutters and downspouts along the west wall.
The evidence is controverted as to the length of time plaintiffs' gutters and downspouts projected from plaintiff's west wall. On plaintiffs' behalf, their original builder and other witnesses testified that the gutters and downspouts were originally installed along the west wall in 1925, when the house was built, and have remained there since that time. On defendants' behalf, his former partner testified that the gutters were not there in 1945, that there had been gutters on the south wall, as suggested by a photograph showing some discoloration on the south wall, possibly from rain gutters; and the brother of defendants' attorney stated that as plaintiffs' agent he had secured permission from defendants to install the gutters about a year and one-half before they were torn down. However, a plat of survey, introduced by defendants, and dated June 7, 1941, contained the notation, "downspouts and gutters project 6" west of line."
In any event, plaintiffs refused to remove the gutters, and, according to defendants' admission and the testimony of their builder, defendants ordered that they be torn down and that the construction of the building proceed as planned.
The evidence further shows that upon plaintiffs' refusal to pay half the cost of installing a "saddle" type drainage installation, defendants, unbeknown to plaintiffs, installed a tar paper flashing between the east wall of the new building and the west wall of plaintiffs' home, to prevent drainage of rain water and melting snow between the two buildings. This flashing, according to the testimony of both plaintiffs' and defendants' witnesses, was not very effective and caused the accumulation of water along the west wall of the Ariola building, with resulting seepage and rotting of the plaster flashing on the inside of plaintiffs' wall and deterioration of the mortar joints between the bricks. Plaintiffs offered evidence that such seepage did not occur prior to 1948.
Upon discovery of the tar paper flashing in 1951, some two years after it was installed, plaintiff Ariola's son kicked a hole in it in order to permit the water to drain off. His testimony as to the accumulation of several inches of water at the west end of the roof was corroborated by the commercial photographer who saw the premises in 1951.
On the basis of substantially the foregoing evidence, the master and the trial court found in substance that there were reciprocal foundation encroachments of a minimum nature, which did not warrant equitable intervention; that plaintiffs' building had a roof drainage system which projected into defendants' premises; that since the system existed in open view uninterruptedly from 1925 to 1948, plaintiffs had acquired an easement thereto; that inasmuch as plaintiffs did not claim the existence of such easement until January 13, 1949, when they set up the matter in reply to defendants' counterclaim, after defendants' had completed the building, plaintiffs' right to equitable relief was barred by laches. The trial court thereupon allowed plaintiffs damages only for the installation of a new drainage system as good as the one destroyed by defendants, and denied plaintiffs damages for the injury and deterioration to their building.
On a previous appeal to this court, the cause was remanded on the ground that no final appealable order was entered. A supplemental decree of June 3, 1958, from which this appeal is taken, provides that questions of plaintiffs' damages and master's fees are no ...