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Cordogan v. Union Nat'l Bk. of Elgin

OPINION FILED SEPTEMBER 15, 1978.

THEODORE CORDOGAN ET AL., PLAINTIFFS-APPELLEES,

v.

UNION NATIONAL BANK OF ELGIN, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. RICHARD WEILER, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendant appeals from the order of the circuit court of Kane County which granted an injunction restraining the defendant from erecting a duplex apartment building in Riverside Manor No. 1, during the term of a restrictive covenant.

The defendant, Roy C. Wauchope, developed Riverside Manor No. 1 in 1957 and at that time set up certain restrictions running with the land as to the lots therein when the plat of subdivision was recorded. Among these restrictive covenants was the following:

"No lot shall be used except for residential purposes. No buildings shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling and a private garage for not more than three cars.

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part."

During the years between 1957 and 1977 Wauchope had purchased farm property in the area immediately surrounding the subdivision, some of which was developed by him as Riverside Manor No. 2 and some of which was sold to other developers for commercial purposes. Sometime after Riverside Manor No. 1 was developed, State Route 31, which adjoins the western boundary of the subdivision, was changed from a two-lane to a four-lane highway and the Northwest Tollway was built, just to the north of the subdivision. A Ramada Inn was also built nearby on a tract of land between the subdivision and State Route 31, the northwest corner of Riverside Manor No. 1 being across the frontage road from the Ramada Inn. Lots 18, 19 and 20, still owned by Wauchope and undeveloped, lie in the northwest corner and run north and south and to the west of Lot 18. Across the frontage road, is the service area or "backyard" of the Ramada Inn. Wauchope testified he had never been able to sell these 3 lots as single family residential lots. The land surrounding Riverside Manor No. 1, mostly owned at one time by Wauchope, not however including the Ramada Inn property, has been sold by Wauchope to other developers or commercial institutions. Surrounding the subdivision in various directions are located a trailer camp, a Holiday Inn, a McGraw Edison manufacturing building, the campus and dormitories of Judson College and a building housing the National Federation of High School Athletic Associations, all of these being commercially zoned and on land sold by the defendant, Wauchope, to others for development. The defendant conceded that these tracts were all sold without restrictions.

The plaintiffs testified that when they bought their lots in Riverside Manor they were informed of and relied on the single-family restriction and it was an inducement for their purchases.

In the spring of 1977, the defendant began laying the foundation for a building on Lot 18 which by a sign announced it would be a duplex apartment building. Previous to this the city council of Elgin had rezoned Lots 18, 19 and 20 to allow such occupancy, which change the plaintiffs had opposed. The plaintiffs then filed a complaint for injunction to enjoin the defendant from constructing the duplex apartment building in violation of the restrictive covenant set out above. After hearing testimony and viewing exhibits submitted in the case, the trial court granted a permanent injunction restraining the defendant from building any structure on Lots 18, 19 or 20, other than a one-family residence. This appeal followed.

Disregarding the argumentative form in which the defendant has framed the issues under "Points and Authorities" in his brief, we will discuss the contentions actually raised in his argument, as follows:

(1) That the character of the surrounding area has so changed that the original purpose of the restrictive covenant can no longer be achieved by its enforcement, therefore an injunction should not be granted to enforce it.

(2) That the relative injury or inconvenience to the plaintiffs in this case would be so slight and the damage to the defendant so great by enforcing the restriction, that a court of equity in balancing the equities should not enforce the covenant.

(3) That the burden is on the plaintiffs to show irreparable harm and an injunction should not be granted where the great majority of the public affected favors the change which the injunction would prevent.

(4) He who seeks equity should do equity and the defendant should have been allowed to show that one of the plaintiffs occasionally kept cement trucks in his driveway, which is not in keeping with a high quality residential neighborhood and another plaintiff had offered to purchase a duplex apartment in Riverside Manor No. 2, which had no restrictive covenant against such a building, and he should be estopped thereby to seek this injunction.

• 1 We disregard as an issue the general statement in the brief that "All doubts and ambiguities should be resolved in favor of natural rights and against restrictions and limitations on the use of property." While this generalization may be accepted as a broad statement of principle, it cannot be used to ignore or override the specific ...


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