Infinity Broadcasting Corporation of Illinois v. The Prudential Insurance Company of America

CUDAHY, Circuit Judge,

dissenting:

The majority’s desire to preclude restraints on land development is the main reason it leaves Infinity uncompensated. By putting the burden of bargaining for specific protections on the prospective tenant, the majority apparently hopes to promote efficient development. But even as a matter of economic efficiency the construction of Two Prudential Plaza imposes costs on Infinity that ought to be recognized. The nature of Infinity’s use was carefully defined in the lease and the landlord should not be free to impair that use with impunity. If Prudential modified the existing building in a way that interfered with broadcasting, it would breach the covenant of quiet enjoyment. That Prudential inflicted the same injury by erecting a second building on the same tract is a distinction without a difference.1

The common sense of the matter is that Prudential bargained to provide Infinity with space for a clearly defined use. Prudential then chose to impair that use to Infinity’s damage. Prudential had therefore obtained both the benefit of its bargain in limiting Infinity’s use of the space and the benefit of preventing Infinity from using the space in the way specified. I see no merit in ignoring the lease covenants in the name of a wholly unburdened “development.” If Prudential can build Two Prudential Plaza without compensating Infinity, its decision to do so will not take account of the full costs of its activity because it will not have to internalize the full costs. The analysis might be different if the rule the majority articulates had been clearly delineated at the time of the bargain, putting Infinity on notice of its need to bargain for specific protections. But Infinity could have quite reasonably relied on the generally understood principle that “[i]n a commercial lease, the covenant [of quiet enjoyment] protects the lessee ... from actions of the lessor that interfere unreasonably with the lessee’s ... ability to conduct business.” American Dairy Queen v. Brown-Port Co., 621 F.2d 255, 258 (7th Cir.1980).2

*1080In any event, it was not necessary to block construction of Two Prudential Plaza — or to impede development — in order to grant Infinity appropriate relief. At the very least, Infinity was entitled to some reduction in rent or damages when its lease and license were rendered completely useless by Prudential’s activities.

I therefore respectfully dissent.

. Bloomington Lodge v. Roland, 217 Ill.App. 435 (3d Dist.1920) is almost exactly the same case. That there was an assignee in that case does not distinguish it; the assignee stood in the shoes of the assignor, and both were burdened by an implied easement. While it is true that Baird v. Hanna, 328 Ill. 436, 159 N.E. 793 (1927), was decided subsequently by the Illinois Supreme Court, Baird did not address situations involving a direct contractual relationship. See infra n. 2.

. The majority and the district court look to Illinois cases in which there was no direct contractual relationship between the parties. People ex reL Hoogasian v. Sears, Roebuck and Co., 52 Ill.2d 301, 287 N.E.2d 677, cert. denied, 409 U.S. 1001, 93 S.Ct. 323, 34 L.Ed.2d 262 (1972) (no contractual relationship between parties); Baird v. Hanna, 328 Ill. 436, 159 N.E. 793 (1927) (original owner of two lots sells them to two different people, one of whom objects to other buyer’s subsequent use of land). Obviously, in the absence of such a relationship, it is necessary to ask whether an obligation arose in some other way — as, for example, through an implied easement. However, here there is a direct contractual relationship, and there is no question that Infinity’s lease with Prudential entitled it to a covenant of quiet enjoyment protecting it, at the very least, against interferences by Prudential.