Janssen v. Foeller
Janssen v. Foeller
Opinion of the Court
The defendant can only be bound by the restrictions in the deed to him of the south one-half of the corner lot and which are the same restrictions found in the deed of that corner lot from the owners of the plot to Bedes-sen, defendant’s grantor. This is so because, as properly found by the court, there was, except for residence purposes
Here defendant lawfully purchased the lower end of the northwest corner lot, upon the title to which there was no restriction as to the number of houses to be erected thereon, and his purchase was made when a house was already there on the upper half and only eleven feet from the same west line on which alone defendant can front. When defendant started to build there was a house on the southwest corner of the same block with a side setback from Woodlawn of but fourteen feet. He could also see that plaintiff, whose lot is about seventy-five feet deeper than defendant’s, had built but 19.5 feet from the west front line, being a setback of 1.5 feet less than the south setback of the earlier built house of defendant’s grantor, Bedessen, and still less than the setback of the house built to the south and subsequent to plaintiff’s on a lot of the same size. If the first built of these particular houses, namely, the Bedessen house, controlled as to the setback', then plaintiff himself violated the rule he seeks to enforce, and perhaps for that reason ought not now to be heard.
Defendant, however, was not confronted with any such a definite and certain situation as to any prescribed or established setback in this block or on this street as should require him to comply with plaintiff’s demands that his setback be the same as plaintiff or that he should not build at all because of alleged violations of the zoning ordinance as plaintiff construed it.
Defendant’s property on the corner lot is so manifestly differently situated as to building possibilities from that of plaintiff and the others who do or may occupy the inside and much deeper lots that it would require a very clear and
Whether the zoning ordinance is applicable to defendant, he-having made his plans and laid sewer, water, and gas connections before the common council adopted it, is immaterial, and not here decided.' Neither do we decide whether, if it were applicable, plaintiff’s sole-remedy would be under the appeal in said ordinance provided.
In any event, that ordinance recognized the substantial equities of one owning a part of a corner lot and his right to build thereon when to conform with the conditions prescribed for inside and deeper lots would make building impossible. The zoning ordinance recognizes a fifteen-foot minimum setback as generally applicable in such residence districts. The court below required the defendant to keep his building that distance or more away from the west line of his lot, and in so doing we think plaintiff gets all that in equity'he should.
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Janssen and wife v. Foeller
- Status
- Published