This case involves two principal questions: (1) Whether the covenants and restrictions in the deeds forbade appellees making the fill or changing the shore line; and (2) whether appellants were guilty of such laches or conduct as to estop them in equity from interfering with the work of filling the lake by appellees.
As to the first question, I agree that the court very properly held the covenants and restrictions in their deeds forbade appellees making the fill and changing the shore line.
The opinion affirms the decree of the lower court on the ground that the injunction asked for was properly denied, not because the work was not in violation of restrictions and covenants in the deeds, but because appellants by their words, acts and conduct induced appellees to do the work at considerable expense. I do not understand the record shows that what appellees did they were induced to do by appellants. Appellee Samuels insisted all the time that he had a legal right to make the fill and change the shore line. He at first was of opinion that he would be required to obtain the consent of the division of waterways *Page 552 to do the work but subsequently found he was mistaken. He never at any time relied on the consent or acquiescence of appellants. In answer to an inquiry of one of appellants as to whether Samuels had the legal right to do that or not, he stated he had; that he had taken advice of counsel, and that he was going to go ahead and do the work regardless of whether anybody else joined with him in it or not. Previous to this talk there had been some talk of appellants, as well as other owners of land, about joining in the work of filling. Samuels testified that at one time appellant Mrs. Bondy said they would join him in making the improvements by improving their property, and said he told her he had already given the engineer instructions about the lines and the filling of the submerged land, "and that I did not depend upon her or anyone else in making my improvements but I was going ahead with those improvements whether she or anyone else joined in or not."
To my mind the proof shows, beyond dispute, that Samuels considered he was within his rights in making the fill and changing the shore line and that it was never intended by him to ask or obtain any consent or acquiescence of appellants. He claimed he had the legal right to make the fill and denied he was induced to do the work by the consent or acquiescence of appellants. That being true, there can be no element of equitable estoppel based upon the knowledge, consent or acquiescence of appellants. An equitable estoppel depends upon the facts of a particular case. The generally accepted rule is, that where a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The person claiming the estoppel must have been misled into such action by the other party and will suffer injury if the estoppel is not declared. The party claiming the estoppel must have relied upon the acts or representations of the *Page 553 other and have had no knowledge or convenient means of knowing the true facts. Fraud is a necessary element. The party asserting the estoppel must have done or omitted some act which changes his position in reliance upon the representations or conduct of the other party. The representations must be concerning a material fact, and the party to whom they are made must be ignorant of the truth of the facts. If the element of fraud is wanting there is no estoppel. (Knapp v. Jones,143 Ill. 375; Washingtonian Home v. City of Chicago, 157 id. 414;Holcomb v. Boynton, 151 id. 294; DeProft v.Heydecker, 297 id. 541; Powers v. Wells, 244 id. 558; People v.Chicago, Burlington and Quincy Railroad Co. 290 id. 327;Gallagher v. Northrup, 215 id. 563; 10 R. C. L. 697.) Appellees were not induced to incur the expenses of doing the work by being misled into believing that appellants had consented or would not object. Appellees entered upon and did the work under the belief that they had the legal right to do it and that it was not within the power of appellants to object. Their mistake was one of law and they were not misled by misrepresentation of the facts. If they were mistaken it does not raise an estoppel in their favor. Finch v. Theiss, 267 Ill. 65; Holcomb v.Boynton, supra.
Appellees contend the prayer for a mandatory injunction is addressed to the sound discretion of the court and was properly refused. The contention is that courts will consider the balance of convenience of the parties, and a mandatory injunction is properly denied where it is in favor of the person sought to be enjoined. A mandatory injunction will not usually be granted where the injury complained of can be substantially compensated by an action at law. Such an injunction is not favored, but in this case I am of opinion no action at law would be adequate. In a case where the offending party has not been misled as to the facts or induced by the other party to do the work he would not otherwise have done, the awarding of a mandatory *Page 554 injunction is authorized. Winhold v. Finch, 286 Ill. 614;Stewart v. Finkelstone, 206 Mass. 28, 28 L.R.A. (n. s.) 634;Steamboat Co. v. Starr M. P. Church, 149 Md. 181; City ofOcala v. Anderson, 50 So. (Fla.) 572.
The proof shows the filling the lake and changing the shore line practically destroys appellants' property for the purposes for which it was sold to them. The damage can not be compensated adequately in an action at law, because the property is practically worthless for summer residence purposes with the fill and shore line changed. I am of the opinion the equities of the case are with appellants, and the decree should be reversed and the cause remanded, with directions to grant the relief prayed for in their bill.