Honsel v. Conant

12 Ill. App. 259, 1882 Ill. App. LEXIS 185

• Court: Appellate Court of Illinois
• Decided: January 16, 1883
• Status: Published

Opinion

Pee Cubiam.

Appellee having failed to file briefs in this case, we are at liberty under our rules to reverse the judgment of the court below$ro forma, or to examine the case upon its merits. Upon inspection of the transcript we find the only question in the case of any importance is, whether or not the court below decided properly in sustaining the demurrer to appellant’s declaration, and in rendering judgment against him upon his electing to stand by it. The declaration claims damages by reason of appellee’s having planted and permitted to grow to a height of about sixteen feet, a hedge on his own land, and within a few feet of appellant’s dwelling house, whereby the currents of air which otherwise would have come to his house were intercepted, and by reason whereof the same became damp and unwholesome and endangered the health of appellant and his family, and after repeated requests, appellee refused to trim the same to a proper height but willfully and .with intent to injure appellant permitted the same to grow in manner aforesaid.

We have examined appellant’s brief and the authorities therein cited, and fail to find anything in it or them to distinguish this case in principle from that of Guest v. Eeynolds, 68 Ill. 479, wherein it was held, that in the absence of an adverse right by prescription, grant or otherwise, the owner has a right to erect a fence or building upon his own land, which will have the effect to deprive the owner of adjacent premises of light and air to his house, and obstruct his view from the same, and such erection, unless made of offensive material, will not be a nuisance for which an action will lie.

In this case the declaration fails to show that the appellant has by any of the methods known to the law acquired an easement in appellee’s premises, whereby the same has been made servient to his for light and air, nor is it alleged that the hedge in and of itself is in any other manner a nuisance to appellant or his property. The declaration was therefore insufficient to sustain an action, and we can see no good to be derived from our entering a proforma, judgment of reversal.

Appellant further complains that the court below erred in ordering the case to be dismissed instead of entering a formal judgment for defendant upon demurrer. The court sustained the demurrer to the declaration, and upon appellant’s abiding by the same it was adjudged that he take nothing by his suit but that the same be dismissed. This may be technically informal, but we regard it in substance as a judgment upon demurrer which was properly followed by a judgment for appellee for costs.

The judgment of the court below is therefore affirmed.