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August 29, 1994



Released for Publication October 14, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

On May 11, 1987, plaintiff, Albert C. Hanna, brought an action to enjoin defendants, American National Bank and Trust Company of Chicago, as Trustee under Trust Agreement dated October 22, 1987, and known as Trust No. 30378, and John A. Brown, from constructing two four-story, masonry towers on defendants' property, in violation of a 50-foot building setback line which plaintiff alleged was applicable to defendants' property. The towers were to extend flush to the sidewalk, with no setback remaining. In lieu of an answer, defendants filed a motion for summary judgment. The trial court granted defendants' motion for summary judgment and plaintiff appealed. On appeal, this court held that material issues of fact existed pertaining to the existence and enforceability of the setback line, and as to defendants' theory of abandonment and waiver, and reversed and remanded this cause to the trial court for a trial. Hanna v. American National Bank and Trust Company of Chicago (1988), 176 Ill. App. 3d 938, 531 N.E.2d 961, 126 Ill. Dec. 334 ("Hanna I").

On remand, following a bench trial, the trial court granted plaintiff's requested relief, and permanently enjoined defendants from constructing the proposed building over the 50-foot building line. Defendants now appeal the judgment of the trial court, contending that: (1) the trial court erred in failing to rule on defendants' affirmative defense of acquiescence; (2) the trial court's ruling that the 50 foot building line was not abandoned was against the manifest weight of the evidence; (3) the trial court erred in ruling that the 50 foot building line had not been judicially abolished; and (4) the trial court erred in ruling that there had not been a material change in the character of the neighborhood so as to render the building line void. For the following reasons, we affirm.

The record reveals the following relevant facts. Plaintiff filed a motion in limine requesting that defendants bear the burden of proof and of proceeding at trial. Plaintiff argued that the fact that a 50-foot setback line was created by the 1860 plot of subdivision is not in dispute, but rather, defendants have raised the affirmative defenses of abolishment and abandonment.

Defendants filed a response to plaintiff's motion, outlining seven defenses as follows: (1) that the 1860 setback line of 50 feet was abolished by an 1889 Superior Court case; (2) that the setback line was abandoned because of prior numerous, substantial violations of the line; (3) that plaintiff and plaintiff's predecessors in title have waived the right to enforce the setback line; (4) that there has been a change in the character of the neighborhood which makes enforcement of the setback line unreasonable; (5) that the setback line is not enforceable because defendants' property is zoned for commercial use; (6) that the setback line is not enforceable because the object of the restriction can no longer be accomplished; and (7) that defendants did not have legal notice of the restriction. On September 12, 1990, the trial court ordered that the defendants proceed bearing the burden of proof at trial, and allowed defendants to raise at trial the defenses as set forth in their response to plaintiff's motion in limine.

The record indicates that defendants made certain admissions prior to trial including: (1) that they are the legal owners of 2508 - 2518 North Clark Street, a/k/a 501 - 519 W. Deming Place, the property located at the southwest corner of Clark Street and Deming Place; (2) that Plaintiff is the owner of a three-story building located at 541 West Deming Place, Chicago, and that the properties located on the south side of Deming Place running west from Clark Street to Orchard Street including plaintiff's and defendants' properties are located in outlot "C" and were subject to a 50-foot setback line when created by a plat of subdivision recorded on November 27, 1860; (3) that defendants' title insurance policy issued upon the purchase of its property contained a restriction reserving the "north fifty feet * * * solely for courtyards and are not to be built upon"; (4) that the Cook County Recorder of Deeds Tract Book 560-B outlot "C", pages 4 and 5, contains entries pertaining to defendants' property; and (5) that the Cook County Recorder of Deeds Tract Book 560-C outlot "D", pages 122 through 126, contains entries pertaining to Wrightwood Avenue property located one block north of Deming Place.

The following relevant facts were adduced at trial. Plaintiff's property and defendants' property are separated by three separate four story, multi-unit, brick apartment buildings and a 20 foot alley. Defendants' property is the only property on the south side of Deming Place, west of Clark Street, which is zoned for commercial use.

Deming Place is a one way street, extending for only two blocks, west from Clark Street to Orchard Street. The only point of vehicular entry onto Deming Place, aside from an alley, is from Clark Street, as Geneva Terrace, the street intersecting Deming between Orchard Street and Clark Street, is a one-way street running south.

In support of their contention that the 50-foot setback line on Deming Place was abolished, defendants introduced into evidence defendants' exhibit 3, page 74 of the Official City of Chicago Map, which displays the south side of Deming Place, extending west from Clark Street to Geneva Terrace. Contained on the map is Note "E" which appears in the left-hand margin of the map as follows: "Superior Court Case No. 125303, abolishes Bldg. lines on Business Streets." Note "E" is shown on the map as being applicable to the setback line existing on the south side of Deming Place, from Clark Street west to Geneva Terrace. Note "E" is also shown on the map as applying to several setback lines along Clark Street. The north side of Deming Place is not shown on the map.

A survey dated May 17, 1989, prepared at plaintiff's request, and admitted as plaintiff's exhibit 14, shows that defendants' building is set back from the sidewalk in excess of 50 feet. The survey further shows that every building on the south side of Deming between defendants' property and Geneva Terrace violates the 50 foot setback line from 5.61 feet to 6.78 feet. The plaintiff's survey notes that the City of Chicago map indicates that Superior Court Case No. 125303 abolished the 50 foot building line.

The remains of the court file in the Superior Court case referred to in Note "E" of the map revealed only that the case was entitled Gould v. Turner and Delaney, and that the case was dismissed by stipulation for want of equity on February 28, 1890. The court file does not contain the stipulation between the parties, nor does itcontain any pleadings or any other information regarding the nature of the case.

Plaintiffs submitted into evidence certified copies of pages from the official tractbooks maintained the Cook County Recorder of Deeds, regarding both defendants' property, and property located one block north at the northwest corner of Clark Street and Wrightwood Avenue. The tractbook pages contain no entries referring to Superior Court Case No. 125303, and do not indicate that the parties Gould, Turner or Delaney ever had title to the property. However, the tractbook pages pertaining to the Wrightwood Avenue property contain several entries reflecting ownership by Frank D. Turner and M.A. Delaney during the period 1889-1890, and an entry dated December 20, 1889 recording the number "125303 s," along with the name of the case, "Elwyn B. Gould v. Same [Frank D. Turner],," on the title to such property.

The title policy obtained by plaintiff upon the purchase of his property in 1965 does not refer to the 50-foot setback on Deming Place, but rather provides for a "Building line of 44 feet along Northerly line of Parcel 2, fronting on Deming Court." The record shows that on February 13, 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 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 further encroachment. The agreement provided that in order to preserve the uniformity of the buildings on the street and to maintain the setback line restriction, the existing forty-four foot setback would be maintained by all owners. Defendants' predecessors in title were not parties to the 1926 agreement.

At trial, John Blaul, Assistant Superintendent of the City of Chicago Bureau of Maps and Plats, (Bureau) examined defendants' exhibit 3, Map number 74, a "counter page" or "80-acre sheet" showing the south side of Deming Place extending west to Geneva Terrace. Blaul explained that the notes on the left-hand side show the subdivisions or other documentation recorded in the Cook County Recorder of Deeds. Blaul agreed that maps are possibly 95% accurate.

Blaul examined Note "E" on the map. Blaul had no idea when Note "E" might have been put on the map, because the position of the notes have nothing to do with the date of their entry. He stated that sometimes draftsmen put the notes in the wrong order. Blaulstated that it is the practice of the Bureau to maintain a file with supporting documentation for any note contained on any map, but that his check of the Bureau file revealed no supporting documentation providing the basis for Note "E" being placed on Map 74.

Blaul examined plaintiff's exhibit 11, Map number 73, also an official record of the Bureau, displaying a separate 80-acre portion of the City, and including both the north and south sides of Deming Place, as well as Wrightwood Avenue, west of Clark Street. Blaul indicated that Note "E" did not appear on Map 73, and that the 50 foot setback line did appear on the map as applying to the south side of Deming Place. Blaul had no explanation for the difference in the two maps.

Plaintiff testified as an adverse witness. Plaintiff has resided at 541 W. Deming Place since December 1965. He stated that all of Deming Place is residential, and that the 50-foot setback line was created in 1860. Plaintiff acknowledged the 1926 agreement, and stated that at that time, his property extended 6 feet beyond the 50-foot setback line, having been built in 1890 in violation of the setback line. Plaintiff further acknowledged that there are other properties on Deming Place that run over the 50-foot setback line.

Plaintiff stated that the purposes of setbacks are to create a uniform street, to create light and air, and to provide an openness to the extent designed by either the setback agreement or by zoning regulations.

Plaintiff stated that he can see a portion of defendants' property from all three floors of his house, looking out of ...

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