Ariola v. Nigro

156 N.E.2d 536 (Ill. 1959)

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Nature of the Case

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Facts

Ps were owners in joint tenancy of the property at 818 N. Twenty-third Avenue, which was improved with a two-story house occupied by them and their children, as a family home. Immediately to the west of P's property is D's property, held in joint tenancy by Ds. This property was improved with a one-story building, until October 1948, when Ds commenced construction of an addition. Ds' mason contractor excavated right up to Ps' building foundation, put in forms only on one side and poured concrete flush against plaintiffs' foundation so that the east part of Ds' foundation is flush with the west part of Ps' building. Ds' foundation encroached upon Ps' property to the extent of 1 inch at the northeast corner of defendants' foundation and some 2 3/8 inches at the southeast corner of the foundation. P notified D of the encroachment and requested them to discontinue construction. D proceeded with the construction of the two-story brick addition. , D claimed that P's foundation was irregular and encroached on Ds' property. D had also notified Ps that Ds would occupy all of their property and that it would be necessary for Ps to remove their projecting gutters and downspouts along the west wall. A dispute developed over just how long the gutters had been on the west wall. Ps refused to remove the gutters, and, Ds ordered that they be torn down and that the construction of the building proceed as planned. D installed flashing which was alleged to have caused the accumulation of water along the west wall of the P building, with resulting seepage and rotting of the plaster flashing on the inside of Ps' wall and deterioration of the mortar joints between the bricks. Ps offered evidence that such seepage did not occur prior to 1948. P's son kicked a hole in the flashing in order to permit the water to drain off. Testimony as to the accumulation of several inches of water at the west end of the roof was corroborated by the commercial photographer who saw the premises in 1951. The trial court found in substance that there were reciprocal foundation encroachments of a minimum nature, which did not warrant equitable intervention; that Ps' building had a roof drainage system which projected into Ds' premises; that since the system existed in open view uninterruptedly from 1925 to 1948, Ps had acquired an easement thereto; that inasmuch as Ps did not claim the existence of such easement until January 13, 1949, when they set up the matter in reply to Ds' counterclaim, after Ds' had completed the building, Ps' right to equitable relief was barred by laches. P was awarded damages only for the installation of a new drainage system as good as the one destroyed by Ds. Both sides appealed.