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11/28/88 Albert C. Hanna, v. American National Bank and

November 28, 1988

ALBERT C. HANNA, PLAINTIFF-APPELLANT

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

531 N.E.2d 961, 176 Ill. App. 3d 938, 126 Ill. Dec. 334 1988.IL.1709

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Albert Hanna, brought an action to enjoin defendants, John Brown and American National Bank, as trustee, from violating a 50-foot building setback line which plaintiff alleged was applicable to defendants' property. The trial court granted defendants' motion for summary judgment and denied plaintiff's cross-motion for summary judgment. Plaintiff appeals from the order granting summary judgment.

Plaintiff contends on appeal that (1) the setback line for defendants' property was not abolished by an 1889 superior court decision, and (2) the facts did not establish that the setback line had been abandoned or abolished.

Defendants argue on appeal that plaintiff's appeal should be dismissed since the notice of appeal was not filed within 30 days following the entry of summary judgment or within 30 days following the Disposition of a proper post-trial motion.

Plaintiff is the owner and resident of a three-story building located at 541 West Deming Place in Chicago. Defendants are the owners of a three-story building located at the southwest corner of Clark Street and Deming Place (the Clark/Deming property) in Chicago. The properties of plaintiff and defendants are separated by three separate, four-story, multi-unit brick apartment buildings. The defendants' property is the only property on the south side of Deming, west of Clark, which is zoned for commercial use.

On May 11, 1987, plaintiff filed a complaint for injunctive relief seeking to enjoin the construction of an addition to the building on defendants' property. The addition which defendants intended to construct was to consist of two five-story towers which would extend flush to the sidewalk, with no setback remaining. The complaint alleged that, when completed, this addition would be in violation of a 50-foot building setback line running parallel to the south side of Deming Place between Clark Street and Orchard Street. Plaintiff relied on a plat of the subdivision recorded on November 27, 1860. Defendants moved for summary judgment, admitting the previous existence of the setback line, but claiming that it had been abolished by an 1889 superior court case. In support of their position, defendants submitted a map maintained by the bureau of maps and plats of the City of Chicago which reflected, in "Note E," that "Superior Court Case No. 125303 abolished Bldg. Lines on Business Streets."

At defendants' request, the clerk of the circuit court of Cook County made a search for the file in superior court case No. 125303. The remains of the file revealed that the case was entitled Gould v. Turner, and that, upon a hearing on the pleadings and on facts stipulated to by the parties, an order was entered on February 28, 1890, dismissing the plaintiff's cause for want of equity.

The Chicago Daily Law Bulletin, during the period December 20, 1889, through February 28, 1890, contained several references to superior court case No. 125303. In particular, an article appeared in the January 8, 1890, Law Bulletin which stated that "Judge Jamieson has rendered a decision which will interest every house owner in the City." The article went on to describe a lawsuit between Frank Turner and E. B. Gould in which Gould had sought to enjoin Turner from violating a building line on the north side of Wrightwood Avenue, near Clark Street. According to the article, Gould claimed that Turner's apartment building violated a building line placed on an 1860 plat of subdivision by "at least thirty feet." Turner had maintained that the building line was unenforceable since it had been abandoned by house builders along the street and that "nearly every house projected, either by porticos or steps, anywhere from three to ten feet over the line." According to the article, Judge Jamieson denied the relief sought by Gould, stating: "It appears here that Mr. Gould and everybody else on Wrightwood Avenue have disregarded the so-called building line. A man cannot come into court and seek to enjoin another man from doing what he has already done himself. Mr. Gould is estopped from enjoining Mr. Turner by his own acts. The injunction is refused."

On February 26, 1926, plaintiff's predecessor in title to the property located at 541 W. Deming entered into an agreement with the other owners of property on the south side of Deming between defendants' property on the east and Geneva Terrace on the west. In the agreement, the owners recognized the existence of the 50-foot Deming Place setback line, the fact that the line had been inadvertently and unknowingly violated by approximately six feet by prior construction, and the desire of the owners to prevent the line from being further encroached upon. Pursuant to the terms of the agreement, in order to preserve the uniformity of the buildings on the street and to maintain the setback line restriction, the parties agreed that the existing 44-foot setback would be maintained by all owners. Defendants' predecessors in title were not parties to the 1926 agreement.

Pursuant to an August 12, 1987, survey prepared at plaintiff's request, every building on the south side of Deming between defendants' property on the east and Geneva Terrace on the west was in violation of a 50-foot building line. The extent of the violations were between 5.61 and 6.78 feet. The plaintiff's survey also notes that the City of Chicago map indicates that the 50-foot building line was abolished. In the trial court, plaintiff submitted a copy of the Chicago Title Insurance Company policy obtained by defendants upon ...


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