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Freehling v. Development Management Group





APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.


Rehearing denied August 24, 1979.

The plaintiffs filed suit in the circuit court of Cook County to enforce a covenant establishing a 15-foot building set-back line. The trial court dismissed the action at the close of the plaintiffs' case. Plaintiffs appeal. The sole issue is whether a seven-foot fence (as contemplated by defendant) can be considered to constitute "any part of any building" within the covenant establishing the building set-back line.

We reverse and remand for further proceedings.

The facts, as revealed by the pleadings and the plaintiffs' evidence, appear not to be in dispute. The plaintiffs own improved real property at 5440-5442 South Hyde Park Boulevard. At the time the complaint was filed the defendant was the optionee to purchase certain vacant parcels of property at the corner of 54th Street and South Hyde Park Boulevard. Since 1902 there have been restrictive covenants governing the building set-back lines of the buildings on the west side of South Hyde Park Boulevard from 54th to 55th Street. The first was executed on June 5, 1902, and recorded on January 15, 1903. The second, executed on December 19, 1925, and recorded on January 29, 1926, modified the first; it is still in existence and, as admitted by the defendant, governs the property in question. The 1925 covenant provided that in light of certain violations of the previous covenant, thus changing the condition of the neighborhood, and the fact that all buildings located on the described properties are set back at least fifteen feet from the street line and zoning laws so required, a new set-back line would be established. Specifically the parties agreed "that no part of any building shall be placed upon or over said property east of said building line" — the line being established as 15 feet west from the street line. The covenant further provided that:

"* * * the part of said structure in violation hereof shall be immediately removed by the offending party, upon request of any owner of any of said lots or property upon which said new building line is established so as to make the same conform to the provisions, conditions and requirements of this building line agreement, and upon failure to remove upon request as aforesaid, any owner or owners of any property hereinbefore described, shall have a right of action against the offending party to compel such removal."

It further provided that the agreement would be binding on the property as covenants running with the land and would remain in effect until such time, once 10 years had passed, as a majority of the affected property owners agreed in writing to change it.

The defendant planned to erect on the corner lots a 56-unit development of town houses. The buildings themselves would be properly set back from the street line. However it wished to surround the lots with a fence located right on the property line. Originally it intended to build a brick wall around the property. However, apparently recognizing the difficulties created by the covenant, it decided to change the brick wall to a wood fence. As described by the defendant in his pleading this will actually be a "series of 13 cedar stockade fences, each 7 feet high, interrupted by 13 wooden gates, or cedar stockade gates, the average fence being 18 feet in length, which fences shall be free standing, and screened with trees, shrubs or bushes on the street side." They will be completely opaque. This is borne out by an illustration in a sales brochure which shows people enjoying a barbeque in a patio surrounded by fence and hedge so thick it looks like a green wall. The public sidewalk would be relocated about 2 1/2 feet east, and the shrubs planted on the exterior side of the fence would be planted in the public way. According to the testimony of defendant's president, the fences were planned because each owner of a town house will use the yard in a variety of ways — some may want a Chinese garden, some a swimming pool, others may want to use it to store canoes or other things in the winter. Accordingly, the planners wanted to screen the area from the view of the general public.

Hyde Park Boulevard from 54th to 55th Street is a longer than usual block. As a boulevard it is also wider than usual. The buildings on the west side are notable in their harmony, the predominant material being red brick. All of the buildings are set back 15 feet from the sidewalk. Thus there is a wide street, wide parkway and a 15-foot set back, all creating a spatial look.

The defendant's sole contention at trial was that the fence did not constitute any part of any building. It did not raise any affirmative defenses. At the close of the plaintiffs' case, the trial court found for the defendant on the ground that the plaintiffs had not shown any deprivation of light or air. The next day it added that there was no breach since the fence was not a part of any of the buildings contemplated.


• 1 Although restrictions on the use of property conveyed in fee are not favored, the court will enforce such restrictions where they are reasonable and not contrary to public policy and are clear and definite. (21A Ill. L. & Prac. Injunctions § 66 (1977).) As to the court's first reason for its holding, we are not convinced that even assuming there was no deprivation of light or air, the plaintiff would not be injured by the building of the fence. The evidence clearly shows that the residents of the area had preserved the unique character of the street for over half a century. This unique character was created by the carefully created and protected wide open area, enforced by the 15-foot set-back line. Obviously this character, and the spatial appearance of the street would be destroyed by the intended fence.

• 2 More importantly, however, it is well settled in Illinois that the mere breach of a covenant is sufficient grounds to enjoin the violation and the plaintiff is not required to show injury. (Hartman v. Wells (1912), 257 Ill. 167, 100 N.E. 500; Van Sant v. Rose (1913), 260 Ill. 401, 103 N.E. 194; Hoffman v. Schwan (1941), 312 Ill. App. 160, 38 N.E.2d 53.) As the court in Hartman remarked 257 Ill. 167, 172-74, 100 N.E. 500, 502):

"The evidence as to whether appellant's property was damaged by the violation of the agreement was conflicting, but we do not think that was a material question. In Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, the court, in discussing the enforcement of negative covenants in courts> of equity, said it was well settled that equity would entertain bills for injunctions to prevent their breach although the breach would cause no substantial injury or although the damages might be recoverable in an action at law. `This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land. As said in Steward v. Winters, 4 Sandf. Ch. 587: "He is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition." (Hill v. Miller, 3 Paige, 254; Macher v. Foundling Hospital, 1 Ver. & B. 188; High on Injunctions, 1142.) In this latter class of cases the court proceeds upon the ground that the grantor or lessor having expressly stipulated that the grantee or lessee shall not do the particular thing complained of, the latter is bound to refrain, and the former is not required to submit to the opinions of others as to whether he will or will not suffer substantial injury.' That case was cited and quoted in substance in the opinion in Star Brewery Co. v. Primas, 163 Ill. 652. In Steward v. Winters, supra, cited in both the last mentioned cases, Vice-chancellor Sandford, delivering the opinion of the court, said: `It is said that the remedy at law for damages is adequate, and that, so far from there being an irreparable injury by the continuance of the breach of this covenant, it is shown there can be no injury at all. I apprehend that we are not to regard this subject in the manner indicated by the latter proposition. The owner of land selling or ...

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