Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Plaintiffs' complaint seeking to remove restrictive covenants established by the plat of a subdivision was stricken on defendants' motion. Plaintiffs elected to stand on the complaint and the suit was dismissed. This appeal is taken from the order of dismissal.
The plaintiffs allege that ". . . they are owners of the Northerly 60 feet of Lot 1 and Lots 2 and 3, and the North 60 feet of Lots 4, 5, 6, 7, 8 and 9 of Glendale Subdivision . . ." referenced to the following plat of subdivision:
Plaintiffs further allege, as material here, that defendants are owners of all of the other lots and portions of lots in said subdivision; that the defendants Paul V. Lobdell and Wentworth Lobdell, as Trustees, were the owners of the land so subdivided, and that part of the plat of the subdivision provided that each lot is and shall be subject to the condition and restriction that "It shall be used for residential purposes only"; that plaintiffs purchased Lots 2 and 3 in 1947 and subsequently acquired their additional property in the subdivision; that following their purchase plaintiffs erected a residence on Lots 2 and 3 which they have occupied as a residence for approximately 20 years, and which they now occupy.
The complaint then alleges:
"6. The eastern boundary of said Glendale Subdivision is a public highway known as North Second Street, and which has been designated as U.S. Highway 51, a highway which runs from the northern boundary of the United States to the southern boundary.
"7. At the time the plaintiffs purchased said Lots 2 and 3 and erected their residence thereon, the general character of the area and neighborhood was
residential and was sparsely populated. At said time, North Second Street was a two-lane highway and vehicular traffic was light.
"8. Since the plaintiffs purchased said Lots 2 and 3 and erected their residence thereon, the general character of the area and neighborhood has materially changed. The area immediately south of said Glendale Subdivision has been incorporated as the City of Loves Park, which now has a population of approximately 12,000. North Second Street has become the major street of the City of Loves Park, and business and commercial establishments occupy both sides of North Second Street for more than one mile south of the plaintiffs' home. A shopping center, containing approximately 20 retail and commercial establishments is now situated on the east side of North Second Street diagonally from the southeast corner of said Glendale Subdivision, and retail and commercial establishments have been and now are being constructed on the east side of North Second Street opposite and north of the plaintiffs' residence. North Second Street has been widened and is now a 4-lane highway, and vehicular traffic is heavy, with approximately 15,000 vehicles passing the plaintiffs' property each day.
"9. Because of the noise of, and because of the noxious and nauseous fumes from, the vehicular traffic on North Second Street, and because of the changed character of the area and neighborhood in which it is located, the plaintiffs' residence has become an undesirable place in which to live, and the value of Lots 2 and 3 and the north 60 feet of Lot 1 of said subdivision for residential purposes has depreciated, but would, if the restrictions above set out were removed, be of greatly increased value.
"10. Said restrictions are, because of the changed character of the area and neighborhood in which said subdivision is located, inequitable, and the plaintiffs have no adequate remedy at law by which such inequity could be remedied."
and prays that the court find and decree that the restrictions set forth above are inequitable and remove the same.
Defendants' motion to dismiss alleges that the complaint is substantially insufficient in law in that it appears from the complaint: that the restrictions were part of a general plan to limit improvements to one-family residences; that there has been unanimous observance of the restrictions by every lot owner in the subdivision, including the plaintiffs; and that no change in the neighborhood of the subdivision is alleged, nor any zoning changes inconsistent with the restrictions.
The motion to dismiss is to be determined by whether the pleader can prove a set of facts under the allegations of the complaint which would entitle him to relief. Only if no set of facts in support of the allegations of the complaint could prove a cause of action is the cause subject to dismissal. Deasey v. City of Chicago, 412 Ill. 151, 153, 154, 105 N.E.2d 725 (1952); Olin Mathieson Chemical Corp. v. J.J. Wuellner & Sons, 72 Ill. App.2d 488, ...