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St. John's Ev. Lutheran Church v. Kreider

OPINION FILED NOVEMBER 4, 1977.

ST. JOHN'S EVANGELICAL LUTHERAN CHURCH ET AL., PLAINTIFFS-APPELLEES,

v.

VIOLET W. KREIDER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Sangamon County; the Hon. L. KEITH HUBBARD, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendants appeal from the order of the trial court which permanently enjoins them from use of Lot 24 of a subdivision "[i]n violation of restrictive covenants" and for "traffic purposes."

Defendants proposed to build a church for a congregation of some 130 persons. The total area of Lot 24 approximates 32,000 square feet. The church will occupy 3,200 square feet, approximately 20,000 would be paved as streets and parking area. Open space would approximate 8,800 square feet. The subdivision as platted in 1916, was outside of the city limits. No zoning provisions are at issue. Deeds from the grantors contained as relevant covenants:

"1. That no building or any other structure which may be erected upon any portion of said premises shall be used for business, trade, traffic, or manufacturing purposes, nor shall spirituous, vinous or malt liquors be sold on said premises.

2. That no more than one dwelling shall be erected upon said lot nor at a cost of less than $10,000 for such dwelling."

The letter memorandum of the trial judge states that he has:

"* * * found it necessary to give particular significance to the words `traffic' and `any other structure' set forth in the first covenant."

Subsequently, the court finds specifically:

"* * * that it would be contrary to the restrictive covenants relative to Washington Park Gardens Subdivision and inequitable to permit the defendants to construct a building and other structures such as pavement and blacktopped structure for traffic * * *."

In support of such conclusion, the court stated:

"Consideration has been given the usual interpretations of the word `traffic'. In the American Heritage Dictionary a definition of traffic which seems applicable hereto is as follows:

`The passage of persons, vehicles * * * through routes of transportation * * *.'"

He also refers to the secondary meaning in Webster's New World Dictionary as the movement of vehicles and persons along a street.

• 1 The meaning of the word "traffic" plainly should be construed in terms of its usage at the time of the drafting of the covenant in 1916. Cyclopedia of Law & Procedure (1911), defines "traffic" as trade, commerce, exchange or sale of commodities. No reference is made to the passage of vehicles or pedestrians in its present denotation. Black's Law Dictionary ...


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