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12/22/89 Bernard A. Heerey, v. Sam Maniatis Et Al.

December 22, 1989

BERNARD A. HEEREY, PLAINTIFF-APPELLANT

v.

SAM MANIATIS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

549 N.E.2d 691, 192 Ill. App. 3d 868, 140 Ill. Dec. 40 1989.IL.2017

Appeal from the Circuit Court of Cook County; the Hon. Sophia Hall, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiff Bernard A. Heerey appeals from an order of the trial court granting summary judgment to defendants in a dispute over the ownership and obstruction of an alley on Chicago's near north side. *fn1 The defendants are Sam Maniatis (Maniatis), the beneficial owner of property abutting the disputed alley, and the City of Chicago (City); Western National Bank of Cicero (Bank), the title owner of Maniatis' property, is not involved in this appeal.

The pertinent facts are as follows. On February 6, 1985, Heerey filed a three-count complaint against Maniatis, the Bank and the City. In count I of his complaint, Heerey sought a declaratory judgment against the City, asserting that a certain alley lying adjacent to and contiguous to the east line of Maniatis' property and the west line of lot 4 of Heerey's property is a private alley. Count II of the complaint sought an injunction against Maniatis, barring his future interference with the alleged private alley. Count III of the complaint sought compensatory and punitive damages for Maniatis' past interference with the alleged private alley. After defendants filed answers to the complaint, Heerey filed a motion for summary judgment, and Maniatis and the City filed cross-motions for summary judgment, both asserting that the alley was a public one.

On March 29, 1988, the trial court granted summary judgment in favor of defendant Maniatis and against Heerey on the cross-motions for summary judgment, and dismissed Heerey's entire complaint. In doing so, the court, in a written decision, stated: "The issues presented to the Court by the motions are: (1) whether Heerey is prohibited from litigating to have the alley declared private by a restrictive covenant contained in a prior 1899 deed in Heerey's line of title; and (2) whether the subject alley is private as Heerey argues, or public as Maniatis argues. The Court having considered the briefs and affidavits finds that Heerey is prohibited from suing to have the alley declared private. The Court does not reach the issue of the public or private status of the alley." The restrictive covenant contained in the 1899 deed referred to by the court, which preceded Heerey's purchase of the property abutting the alley (lot 4), states as follows:

"A part of the consideration herein is that the grantee herein and all persons holding under and through him [of lot 4] shall never join in any petition to vacate the public alley next west of those premises, but such alley shall forever remain a public alley situated in the City of Chicago." (Emphasis added.)

On July 13, 1988, Heerey filed a motion for reconsideration. The trial court subsequently denied the motion, and this appeal followed.

On appeal, Heerey seeks either a reversal of the trial court's dismissal of his cause with a declaration that the alley is a private one and a remandment for a determination of his injunction count (count II) and damages count (count III) of his complaint or a remandment with instructions to the trial court to enter a declaratory judgment on the ownership status of the alley after an evidentiary hearing and a hearing thereafter on counts II and III of his complaint.

Heerey makes his prayer for relief based on arguments, among others, that the trial court erred in leaving the ownership of the disputed alley unresolved, that it erred in dismissing the entire complaint where there were three counts in the complaint and only one was addressed by the court's order, that it was error for the trial court to hold that the restrictive covenant contained in the 1899 deed barred his action, that the alley could not be public as a matter of law, and that the trial court misinterpreted the restrictive covenant which it relied on.

Maniatis argues that the trial court properly concluded that the restrictive covenant barred the action and, accordingly, the court properly entered summary judgment in his favor. In addition, both Maniatis and the City argue that the alley is a public one.

Summary judgment should be granted where "the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 110; Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).) Evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053.) The right to summary judgment must be clear beyond question, and an order granting summary ...


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