dissenting:
I agree with the majority that all doubts and ambiguities in the interpretation of restrictive covenants “must be resolved in favor of natural rights and against restrictions.”
I agree, too, that in construing the language of the deed we must give effect, if possible, to all clauses of the restriction; such as “separate housekeeping of more than one family.”
I agree, also, that the first and “fundamental purpose” of the restriction is “to limit each structure to one housekeeping unit.”
In our conclusions we differ, however, for I believe that the majority departs from all three of these principles which it purports to accept.
The language we are to construe is that “no apartment or flat-building or structure . . . used . . . for the separate housekeeping of more than one family shall ever be . . . maintained on any lot.”
I would consider it clear that the general purpose as conceived by the draftsman in 1896 was to rule out the type of buildings which were then being erected extensively in this city for the housing of multiple housekeeping facilities, called “apartments” or “flats.” The word, “structure,” as here used, adds little, as it takes its meaning by absorption from the other two words.
If we are to apply the principles stated above, this restriction does not proscribe use of the building in a single housekeeping unit by any number of persons or families. If the course of events 65 years later indicates that it would or might have been desirable to have drawn the restriction differently, that is not our problem. We must consider the words as written, and they do not, in my opinion, limit the number of families so long as a single housekeeping unit is maintained. To support the majority’s conclusion on its own terms, the words of the restriction would have to be changed
from “for the separate housekeeping of more than one family”
to “for separate housekeeping or more than one family,” or words to that effect. And that is essentially one of the changes which was made by the decree from which this appeal has been taken.
Even if we were to ignore the “separate housekeeping” provision (as the majority apparently does), we would still be faced with the words, “more than one family,” and the only possible basis for the injunction in this case would then be that defendant’s occupancy of the premises constitutes use by “more than one family.”
Bearing in mind that restrictive “covenants will be construed with the utmost strictness, to the end that the restraint shall not be extended beyond the express stipulation,” (Postal Tel. Cable Co. v. Western Union Tel. Co., 155 Ill 335, 348, 40 NE 587) it should be noted that the words in question do not require that the premises be occupied by a family at all, although it would have been simple to impose such a limitation. As stated in Leverich v. Roy, 338 Ill App 248, 254, 87 NE2d 226, “If the construction contended for . . . were intended it would have been very easy to have said that the property was to be used as a one family residence only.” *
Both the chancellor and the majority here, have decided that the persons occupying the premises on behalf of defendant “are not a ‘family’ as that word is used in said restrictive covenants.” ** Applying to this finding, the words of the proscription against use by “more than one family,” I fail to see how the restriction is violated through use by no family at all; or how “less than one” can be “more than one.”
This is without considering defendant’s contention that the occupants of the premises do constitute a “family” and the cases it has cited in support, some of which are quite persuasive. In stating its conclusions on this point, the majority repeatedly forswears the writing of a definition of the word, “family,” and yet it does so inferentially by affirming the decree which does so specifically.
In my opinion, the restriction as redrafted in the decree is not the same one imposed by the deed and I, therefore, believe the decree should be reversed.
In the Leverich case, the restriction limited use of the land to “one dwelling house” or one “private dwelling house.” It was held that these words did not prohibit use as a two-family apartment building, citing Hutchinson v. Ulrich, 145 Ill 336.
This quotation is from the decree.