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Watts v. Fritz

OPINION FILED NOVEMBER 26, 1963.

ROY WATTS, APPELLEE,

v.

ERICH H. FRITZ ET AL., APPELLANTS.



APPEAL from the Circuit Court of Will County; the Hon. JAMES V. BARTLEY, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Roy Watts, who, with his wife, owned lot 24 in Robert Bartlett's Spring Creek Woods Subdivision, filed suit in equity against defendants, Erich H. Fritz and Florence V. Fritz, his wife, the owners of lot 74 in said subdivision, praying in count I of their complaint for an injunction to restrain defendants from subdividing their lot 74 and from erecting more than one principal building on said lot and that the conveyances dividing said lot be declared null and void, and praying in count III for a declaratory judgment declaring that, by reason of the restrictive covenants imposed upon lot 74, defendants may not construct more than one principal building on lot 74 as originally platted. Count II prayed for other relief and on plaintiff's motion was dismissed.

After hearing before a master and upon the master's report, the circuit court of Will County entered a decree approving the report and denying objections thereto, and by its decree issued the injunction and entered declaratory judgment restricting defendants from erecting more than one dwelling on lot 74 as originally platted, restricting defendant Florence V. Fritz, her agents or nominees, from erecting any building on the south 275 feet of lot 74, and declaring that defendants or their grantees may not construct more than one principal building upon lot 74 as originally platted.

In the original subdivision there were 107 lots of varied sizes, most of which are 165 feet in width and in length from 250 to more than 1,100 feet. There are no alleys in the subdivision and the lots have no means of ingress and egress other than to the front of the lot. Lot 74, as originally platted, was 165 feet in width and approximately 600 feet in length.

On August 4, 1960, the defendants divided their lot 74 into two parcels, the southerly part thereof being 275 feet in length. At the same time, defendants acquired the north 15 feet of lot 35 and part of lot 36, which gave them ingress and egress to the south 275 feet of lot 74.

On February 24, 1961, defendants contracted to sell the south 275 feet of lot 74 and the portions they owned of lots 35 and 36 to Maurice Barry and Jane N. Barry, his wife, who intend to build a dwelling house on said south 275 feet of lot 74.

The subdivision was platted in 1945, and various lots were sold by the subdivider, Robert Bartlett, and thereafter subdivided and have more than one house on a lot as originally platted. One of these subdivided lots is directly across the street from defendants' lot 74, and was subdivided and two houses built on it after plaintiff purchased his property. A majority of these subdivided lots were subdivided prior to August 4, 1960, when the defendants subdivided lot 74. Frank E. Merril, in charge of all the salesmen of Robert Bartlett, purchased three lots in the subdivision and subdivided them later.

At the time Spring Creek Woods Subdivision was platted the subdeveloper sold lots of various sizes and all of the deeds to said lots contained the same restrictions or covenants. These were numerous and detailed. The master found that none of these restrictive covenants prohibited the further subdividing of the lots as originally platted, which finding the court approved. However, the master also found that when all of the restrictions are read as a whole and considered in relation to each other, they prohibited the construction of more than one house or dwelling place on a lot as originally platted.

The restrictive covenants primarily relied on are as follows:

"1. Subject to such of the following covenants as refer to the real estate herein described which shall run with the land and shall be in force and effect and shall be binding on all parties and all persons claiming under them until January 1, 1965, at which time said covenants shall automatically extend for successive periods of ten years unless by a vote of the majority of the then owners of the lots, it is agreed to change the said covenants in whole or in part.

"2. The principal building erected or placed on any lot in the subdivision must have a ground floor area of at least five hundred twenty (520) square feet exclusive of porches or attached garages. Out-buildings other than garages shall not be erected or placed nearer than one hundred (100) feet to the front lot line.

"3. No trailer, basement, tent, shack, garage or barn or other out-building erected on said premises shall at any time be used as a residence or business, temporarily or permanently, nor shall any residence of this character be permitted.

"4. Water wells shall be located and constructed in accordance with the standards set forth by the State Department of Public Health, the location being such that the wells will be reasonably protected from pollution by seepage from waste disposal systems on the same or adjacent lots. Such wells shall be constructed on the front one-half of said Lots.

"5. If the parties hereto, or any of them, or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said Development or Subdivision to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenant and ...


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