Mr. Justice Magruder
delivered the opinion of the Court s
In this case, many questions of fact and law are discussed by counsel in their briefs, but the record is not in such shape as to authorize us to consider any of these questions, except that which arises out of the refusal of the trial court to admit certain offered evidence, as hereinafter stated. The trial was, by agreement, before the court without a jury, and resulted in a judgment for the plaintiff, which has been affirmed by the Appellate Court. The judgment of the latter court is conclusive as to the 'findings of fact. No “written propositions to be held as law in the decision of the case” were submitted to the court on the trial below by either side in accordance with section 42 of the Practice Act; and, hence, no question of law is presented for our determination, unless the errors assigned as to the admission or exclusion of evidence necessarily involve the consideration of such a question. (Bank of Michigan City v. Haskell, 124 Ill. 587; Myers v. Union Nat. Bank, 128 id. 478; Hall v. Cox, 144 id. 532.
■ The evidence tends to show that a strong light is necessary for such business of manufacturing and polishing marble as appellant was engaged in, and that the demised premises were selected by the appellant for that business mainly because of their freedom from surrounding obstructions to the supply of light. Accordingly, the defendant below offered to prove, that the erection of the Springer building on the south side of the Keating building prevented the entry of light into the latter from the south and west. Upon objection by the plaintiff the court refused to receive the testimony, and an exception was taken to its ruling by the defendant. The action of the trial court was correct, if there is no express covenant or agreement in the lease, obligating the landlord to permit the light to pass over the south lot into the leased premises.
The English doctrine is, that “if one, who has a house with windows looking upon his own vacant land, sell the same, he may not erect upon his vacant land a structure which shall essentially deprive such house of the light through its windows.” (Washburn’s Ease. & Serv. marg. page 492, par. 5). This doctrine, however, does not prevail in the majority of the American States. It is held to be inapplicable in a country like this, where the use, value and ownership of land are constantly changing. Air and light are the common property of all. The owner of a lot cannot be presumed to have assented to an encroachment thereon, if he has permitted the light and air to pass over it into the windows of his neighbor’s house situated upon the adjoining lot. The actual enjoyment of the air and light by the latter is upon his own premises only. The prevalent rule in the United States is, that an easement in the unobstructed passage of light over an adjoining close cannot be acquired by prescription. (2 Woodfall’s Land. & Ten. marg. page 703 and notes; 1 Taylor’s Land. & Ten. secs. 239, 380, and notes; Keats v. Hugo, 115 Mass. 204; Mullen v. Stricker, 19 Ohio St. 135). In the early case of Gerber v. Grabel, 16 Ill. 217, this court held that such a right might be so acquired, but in the later case of Guest v. Reynolds, 68 Ill. 478, the Gerber case was, in effect, overruled; and it was held, that “a prescriptive right, springing up under the narrow limitation in the English law, to prevent obstructions to window lights” “cannot be applied to the growing cities and villages of this country without working the most mischievous consequences, and has never been deemed a part of our law.”
It is established by the weight of American authority, that a grant of the right to the use of light and air will not be implied from the conveyance of a house with windows overlooking the land of the grantor; and that, where the owner of two adjacent lots conveys one of them, a grant of an easement for light and air will not be implied from the nature or use of the structure existing on the lot at the time of the conveyance, or from the necessity of such easement to the convenient enjoyment of the property. (Keats v. Hugo, supra; Mullen v. Stricker, supra; 1 Wood’s Land. & Ten. sec. 209, pages 422-3-4 and note; Morrison v. Marquardt, 24 Iowa, 35). “A grant by the owner of two adjoining lots of one of them does not imply the right of an unobstructed passage of light and air over the other.” (2 Woodf. Land. & Ten. marg. page 703 and note). “The law of implied grants and implied reservations, based upon necessity or use alone, should not be applied to easements for light and air over the premises of another.” (Mullen v. Stricker, supra; Haverstick v. Sipe, 33 Penn. St. 368; Keiper v. Klein, 51 Ind. 316).
It follows, that a landlord will not be liable for obstructing his tenant’s windows by building on the adjoining close, in the absence of any covenant or agreement in the lease forbidding him to do so. (Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Keiper v. Klein, supra; 2 Woodf. on Land. & Ten. marg. page 703 and note).
But the authorities all agree, that the right to have the light and air enter the windows of a building over am adjoining lot may exist by express grant, or by virtue of an express covenant, or agreement. (Hilliard v. Gas Coal Co. 41 Ohio St. 662; Brooks v. Reynolds, 106 Mass. 31; Keats v. Hugo, supra; Morrison v. Marquardt, supra.)
The question then arises whether the erection of the Springer building could have been regarded as a violation of the express terms of the lease, if proof had been admitted showing that it obstructed the light necessary to carry on the business. The lease contains the following provision: “Party of the first part shall not build at the rear of said premises nearer than 25 feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises.” The meaning of the word, “premises,” as here used, is not to be restricted to the Keating building alone, but embraces also the space in the rear thereof. The lease speaks of “all those premises * * * described as follows;” and then mentions, as constituting those premises, first, the basement, second, the store floor, “also a space in the yard at the rear,” 25 feet deep. The space in the rear is as much a part of the premises demised as the basement and the store floor. Therefore the appellee agreed that he would not build nearer than 25 feet to the west line of the demised space west of the Keating, building, which space was 25 feet wide from east to west. The Springer building was 75 feet deep, while the Keating building was only 50 feet deep; It follows that the extension of the former west of the rear of the latter was south of said space in the yard at the rear. The north wall of the Springer building did not extend further west than the west line of said space in the yard; and, consequently, the whole of the Springer building was south of the demised premises. Hence, we think counsel for appellee is right in the contention, that no part of that building can be considered as an obstruction placed in the rear, or to the west, of the premises leased to appellant. But we cannot agree with counsel in so construing the language of the provision as to limit it to obstructions placed in the rear. The landlord does not agree, that no obstruction higher than six feet shall be placed in the rear in such manner as, to obstruct light to said premises.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Magruder
delivered the opinion of the Court s
In this case, many questions of fact and law are discussed by counsel in their briefs, but the record is not in such shape as to authorize us to consider any of these questions, except that which arises out of the refusal of the trial court to admit certain offered evidence, as hereinafter stated. The trial was, by agreement, before the court without a jury, and resulted in a judgment for the plaintiff, which has been affirmed by the Appellate Court. The judgment of the latter court is conclusive as to the 'findings of fact. No “written propositions to be held as law in the decision of the case” were submitted to the court on the trial below by either side in accordance with section 42 of the Practice Act; and, hence, no question of law is presented for our determination, unless the errors assigned as to the admission or exclusion of evidence necessarily involve the consideration of such a question. (Bank of Michigan City v. Haskell, 124 Ill. 587; Myers v. Union Nat. Bank, 128 id. 478; Hall v. Cox, 144 id. 532.
■ The evidence tends to show that a strong light is necessary for such business of manufacturing and polishing marble as appellant was engaged in, and that the demised premises were selected by the appellant for that business mainly because of their freedom from surrounding obstructions to the supply of light. Accordingly, the defendant below offered to prove, that the erection of the Springer building on the south side of the Keating building prevented the entry of light into the latter from the south and west. Upon objection by the plaintiff the court refused to receive the testimony, and an exception was taken to its ruling by the defendant. The action of the trial court was correct, if there is no express covenant or agreement in the lease, obligating the landlord to permit the light to pass over the south lot into the leased premises.
The English doctrine is, that “if one, who has a house with windows looking upon his own vacant land, sell the same, he may not erect upon his vacant land a structure which shall essentially deprive such house of the light through its windows.” (Washburn’s Ease. & Serv. marg. page 492, par. 5). This doctrine, however, does not prevail in the majority of the American States. It is held to be inapplicable in a country like this, where the use, value and ownership of land are constantly changing. Air and light are the common property of all. The owner of a lot cannot be presumed to have assented to an encroachment thereon, if he has permitted the light and air to pass over it into the windows of his neighbor’s house situated upon the adjoining lot. The actual enjoyment of the air and light by the latter is upon his own premises only. The prevalent rule in the United States is, that an easement in the unobstructed passage of light over an adjoining close cannot be acquired by prescription. (2 Woodfall’s Land. & Ten. marg. page 703 and notes; 1 Taylor’s Land. & Ten. secs. 239, 380, and notes; Keats v. Hugo, 115 Mass. 204; Mullen v. Stricker, 19 Ohio St. 135). In the early case of Gerber v. Grabel, 16 Ill. 217, this court held that such a right might be so acquired, but in the later case of Guest v. Reynolds, 68 Ill. 478, the Gerber case was, in effect, overruled; and it was held, that “a prescriptive right, springing up under the narrow limitation in the English law, to prevent obstructions to window lights” “cannot be applied to the growing cities and villages of this country without working the most mischievous consequences, and has never been deemed a part of our law.”
It is established by the weight of American authority, that a grant of the right to the use of light and air will not be implied from the conveyance of a house with windows overlooking the land of the grantor; and that, where the owner of two adjacent lots conveys one of them, a grant of an easement for light and air will not be implied from the nature or use of the structure existing on the lot at the time of the conveyance, or from the necessity of such easement to the convenient enjoyment of the property. (Keats v. Hugo, supra; Mullen v. Stricker, supra; 1 Wood’s Land. & Ten. sec. 209, pages 422-3-4 and note; Morrison v. Marquardt, 24 Iowa, 35). “A grant by the owner of two adjoining lots of one of them does not imply the right of an unobstructed passage of light and air over the other.” (2 Woodf. Land. & Ten. marg. page 703 and note). “The law of implied grants and implied reservations, based upon necessity or use alone, should not be applied to easements for light and air over the premises of another.” (Mullen v. Stricker, supra; Haverstick v. Sipe, 33 Penn. St. 368; Keiper v. Klein, 51 Ind. 316).
It follows, that a landlord will not be liable for obstructing his tenant’s windows by building on the adjoining close, in the absence of any covenant or agreement in the lease forbidding him to do so. (Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Keiper v. Klein, supra; 2 Woodf. on Land. & Ten. marg. page 703 and note).
But the authorities all agree, that the right to have the light and air enter the windows of a building over am adjoining lot may exist by express grant, or by virtue of an express covenant, or agreement. (Hilliard v. Gas Coal Co. 41 Ohio St. 662; Brooks v. Reynolds, 106 Mass. 31; Keats v. Hugo, supra; Morrison v. Marquardt, supra.)
The question then arises whether the erection of the Springer building could have been regarded as a violation of the express terms of the lease, if proof had been admitted showing that it obstructed the light necessary to carry on the business. The lease contains the following provision: “Party of the first part shall not build at the rear of said premises nearer than 25 feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises.” The meaning of the word, “premises,” as here used, is not to be restricted to the Keating building alone, but embraces also the space in the rear thereof. The lease speaks of “all those premises * * * described as follows;” and then mentions, as constituting those premises, first, the basement, second, the store floor, “also a space in the yard at the rear,” 25 feet deep. The space in the rear is as much a part of the premises demised as the basement and the store floor. Therefore the appellee agreed that he would not build nearer than 25 feet to the west line of the demised space west of the Keating, building, which space was 25 feet wide from east to west. The Springer building was 75 feet deep, while the Keating building was only 50 feet deep; It follows that the extension of the former west of the rear of the latter was south of said space in the yard at the rear. The north wall of the Springer building did not extend further west than the west line of said space in the yard; and, consequently, the whole of the Springer building was south of the demised premises. Hence, we think counsel for appellee is right in the contention, that no part of that building can be considered as an obstruction placed in the rear, or to the west, of the premises leased to appellant. But we cannot agree with counsel in so construing the language of the provision as to limit it to obstructions placed in the rear. The landlord does not agree, that no obstruction higher than six feet shall be placed in the rear in such manner as, to obstruct light to said premises. His agreement is, that no obstruction higher than six feet shall be placed, whether to the north, or to the west, or to the south, in such manner as to obstruct light to said premises, that is, to said space in the rear as well as to said building. The Springer building—a brick structure five stories high—was so constructed, that its north wall joined the south wall of the Keating building and the south line of the space in the yard at the rear thereof. In view of the express provision in the lease, as above quoted and construed, we are of the opinion that the defendant below was entitled to prove, if he could, that the Springer building was an obstruction placed in such manner as to obstruct light to said premises; and that the trial court should have admitted the proof upon that subject when offered.
It is claimed, however, that the offered evidence was properly rejected, because this suit is for rent accruing during a period while the tenant was in possession. In order to constitute an eviction, it is not necessary that there should be an actual physical expulsion. Acts of a grave and permanent character, which amount to a clear indication of intention on the landlord’s part to deprive the tenant of the enjoyment of the demised premises, will constitute an eviction. (Hayner v. Smith, 63 Ill. 430). If the acts of the landlord are such as merely tend to diminish the beneficial enjoyment of the premises, the tenant is still bound for the rent, if he continues to occupy the premises. Unless he abandons the premises, his obligation to pay the rent remains. (Skally v. Shute, 132 Mass. 367.) We said in Chicago Legal News Co. v. Browne, 103 Ill. 317: “The rule is well settled that the wrongful act of the landlord does not debar him from a recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession, either actually or constructively, or the premises rendered useless. Edgerton v. Page, 20 N. Y. 284; Halligan v. Wade, 21 Ill. 470; Leadbeater v. Roth, 25 id. 587.”
To evict a tenant, according to the original signification of the word, is to deprive him of the possession of the land. But the landlord, without being guilty of an actual pyhsical disturbance of the tenant’s possession, may yet do such acts as will justify or warrant the tenant in leaving the premises. The latter may abandon the premises in consequence of such acts, or he may continue to occupy them. If he abandons them,-then the circumstances which justify such abandonment, taken in connection with the act of abandonment itself, will support a plea of eviction as against an action for rent. If, however, the tenant makes no surrender of the possession, but continues to occupy the premises after the commission of the acts which would justify him in abandoning them, he will be deemed to have waived his right to abandon; and he cannot sustain a plea of eviction by showing that there were circumstances, which would have justified him in leaving the premises. Hence, it has been held that there cannot be a constructive eviction without a surrender of possession. It would be unjust to permit the tenant to remain in possession, and then escape the payment of rent by pleading a state of facts, which, though conferring a right to abandon, had been unaccompanied by the exercise of that right. (Edgerton v. Page, supra; Boreel v. Lawton, 90 N. Y. 293; DeWitt v. Pierson, 112 Mass. 8; Warren v. Wagner, 75 Ala. 188; Wright v. Lattin, 38 Ill. 293; 1 Taylor’s Land. & Ten.—8 ed.—secs. 380, 381, and notes; 2 Wood’s Land. & Ten.—2 ed.—sec. 477, pages 1104-1106; Alger v. Kennedy, 49 Vt. 109; Scott v. Simons, 54 N. H. 426; Jackson v. Eddy, 12 Mo. 209).
But though the tenant will not be allowed to plead eviction as a bar to the recovery of rent, where he has remained in possession after the performance of the acts which would have justified him in leaving the premises, yet he is not for that reason without remedy. In those states where the doctrine of recoupment is recognized, he may recoup such damages, as he may have sustained by reason of the acts of the landlord, against the rent sought to be recovered. (1 Taylor’s Land. & Ten. sec. 374; 2 Taylor’s Land. & Ten. sec. 631; 2 Wood’s Land. & Ten. sec. 477, page 1107; Edgerton v. Page, supra; Warren v. Wagner, supra). Taylor in his work on Landlord and Tenant (sec. 631) says: “By the law of recoupment, as now established in many of the United States, the tenant can avail himself, as a defense pro tanto to an action of debt for rent, of the landlord’s breach of his covenants.” The doctrine of recoupment is recognized in this state, and has been applied in proceedings begun by the issuance of distress warrants, and in actions for rent. (Wright v. Lattin, supra; Lindley v. Miller, 67 Ill. 244; Lynch v. Baldwin, 69 id. 210; Pepper v. Rowley, 73 id. 262).
In Lynch v. Baldwin, supra, where the landlord had issued a distress warrant we said: “As to recouping damages for any loss or injury sustained by the "tenant, we have no doubt that it may be done, as they grow out of the same transaction. The object of this inquiry is to ascertain the amount of rent due; and if the acts of the landlord impaired the value of the use of the premises, then the tenant should not pay the same rent as if the landlord had done no act to reduce such value.”
In Pepper v. Rowley, supra, which was an action to recover rent due under a lease, we said: “If there has been a breach of any covenant contained in the lease, whatever damage appellee has sustained in consequence thereof, may be recouped in this action from the amount of rent due under the lease.”
In the case at bar, the consolidated proceeding not only includes a suit for rent, but also several proceedings begun by the issuance of distress warrants; and the stipulation permits the defendant to introduce, under the general issue, “any defense and also any set off, whether matter of contract or tort, that he may have, in the same manner * * * as if specifically pleaded.” We therefore think, that the offered testimony as to the effect of the erection of the Springer building upon the supply of light should have been received, in order that any damages, which the defendant may have sustained thereby, might be recouped in reduction of the amount of recovery ; and that defendant was not precluded from showing such damages by Ms failure to surrender possession at an earlier date.
Even if the offered testimony was not admissible as- tending to show damages by way of recoupment, it was competent under the declaration in the action brought by Keating against Springer to recover damages for cutting off the light by the erection of the Springer building. Under the" stipulation, not only were the suits.brought by Springer to be tried together, but also with them was consolidated for trial at the same time the action in case which Keating brought against Springer. It is well settled that, although the omission of the landlord to perform his covenants" may not amount to an eviction, nor operate as a bar to his claim for rent, yet the lessee has his remedy by an action to recover damages for a breach of the covenant. (Warren v. Wagner, supra; Chicago Legal News Co. v. Browne, supra; Lounsbery v. Snyder, 31 N. Y. 514; Wright v. Lattin, supra; Royce v. Guggenheim, 106 Mass. 201; 1 Taylor on Land. & Ten. secs. 379, 381, and notes; 2 Wood on Land. & Ten. sec. 477, page 1107).
It is furthermore claimed by the appellant, that all the matters, set up in defense, or as ground of recovery by the defendant in the present consolidated suits, were extinguished by the judgment in the forcible detainer suit, and that said judgment operates as res judicata, so as to bar all appellant’s rights of recovery or recoupment. We are unable to yield our assent to this view. The judgment in forcible entry and detainer is conclusive only as to the right of possession, and, in a certain class of cases, as to the existence of the relation of landlord and tenant between the parties, and as to the tenant’s wrongful holding over. (Doty v. Burdick, 83 Ill. 473; Norwood v. Kirby, 70 Ala. 397; Hodgkins v. Price, 132 Mass. 196; 8 Am. & Eng. Enc. of Law, page 176). It was said, in Robinson v. Crummer, 5 Gilm. 218, that “damages "are not recoverable in this action, but the only judgment for the plaintiff is, that he have restitution of the premises,” etc.
For the error committed in the refusal to receive the evidence offered by the defendant as- hereinbefore mentioned, the judgments of the Appellate and Circuit Courts are reversed, and the cause is remanded to the Circuit Court for further proceedings in accordance with the views herein expressed.
Judgment reversed„