
    The Linwood Park Company v. Van Dusen. The Linwood Park Company v. Rose et al. The Linwood Park Company v. Dudley et al.
    
      Corporation for owning land for religious meetings — Leases land with restrictive covenants as to use of premises for private dwellings — Injunction proper remedy to restrain injury in breach of covenant — Renting rooms by lessee, a breach of covenant — Nature of refusal of lessee to pay admission fee to grourlds
    
    1. When a corporation which, has for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings on the same, leases a part of such land with restrictive covenants in the lease that the lessees “during all meetings would be subject to the rules and regulations of said meeting,” and “would use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company,” such covenants are valid and binding on the lessees.
    2. Upon a breach of the covenants, and to. restrain an irreparable injury resulting therefrom, injunction is a proper remedy.
    
      3. Wtere suck lessees make a business of renting rooms, in their buildings on such leased premises, to temporary occupants, and refuse to obtain a special permit from the lessor and refuse to comply with the reasonable requirements of the lessor, in regard to the privilege of so using the leasehold, such use is a breach of the covenant to “use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company.”
    4. The refusal to pay a gate ,fee, during the meetings, for admission to the grounds of the plaintiff on which the buildings of the defendants are situated, the same as charged to all other persons, is a breach of the covenant that the lessees “during all meetings would be subject to the rules and regulations of said meeting.”
    (Decided October 16, 1900.)
    Error to the Circuit Court of Lorain county.
    The petitions in these cases and the leases upon which they are fouuded are substantially alike, except in names, descriptions of property, amounts of money and dates. They set out that the plaintiff, The Linwood Park Company, is a corporation having its principal office in Cleveland, Ohio; that it is the owner in fee simple of a tract of land in Erie county, Ohio, known as Linwood Park; that it entered into a contract of lease with the defendant by the terms of which it leased to the defendant, his executors, administrators and assigns, for the term of ninety-nine years, the described lot in said Linwood Park. Plaintiff further alleges “that the said contract of lease was made with said defendant upon the following conditions: That the said defendant, during all meetings held at said park, should subject himself to the rules and regulations of said meetings and that defendant will use such premises for the purposes of a private dwelling or residence only except on special permit from the company.
    
      “Plaintiff says that it is further provided in said, lease that if the defendant should fail to perform any or all the aforesaid covenants herein made for the space of three months after due notice given, this lease shall be null and void; that said due notice was. given to defendant, and plaintiff further says that it has performed all the conditions of said lease to be performed by it.
    “And plaintiff further says that said lease was duly executed and acknowledged by said defendant and. recorded on the records of Erie county, at Sandusky,. Ohio.”
    Plaintiff says that defendant was permitted to build upon the leased lot of land a dwelling house;, and that in 1895 the defendant was permitted by the plaintiff, upon payment of a sum of money, to-use the premises for purposes other than that of a. private dwelling or residence, to-wit, to rent rooms, and beds for hire in said dwelling, and that a like permission was given in 1896 upon payment by defendant to plaintiff of the sum of $1.50 for-each and every bed in said dwelling above the number of four. The plaintiff further alleges that, each of the defendants did pay for the privilege of renting rooms and beds in his dwelling, but that for the years 1895 and 1896, in two of the cases, and for-the year 1896 in the other case, each of the defendants refused to pay anything, although they have during that time rented many rooms and beds in their said dwellings, and are threatening to rent rooms and beds therein contrary to the terms of said-leases, and without license or permit from the plaintiff, and refuses to pay anything therefor, and declares that he is under no obligation to do so. Plaintiff further says that it does not know how many beds were rented by tbe defendants in tbe year 1896, and asks that each defendant may make tbe number known by answer. And tbe plaintiff also says that tbe dwelling bouses built in said park are designed for occupancy during tbe summer months only; that it has many lots for sale in said park; that it has a large hotel in said park, and that tbe use, by defendants respectively, of their dwellings as public boarding bouses or tenement bouses causes irreparable injury to tbe plaintiff, not only in tbe profitable maintenance of its hotel, but also in tbe sale of its lots and that it was this very act that tbe plaintiff contracted against by tbe terms of bis lease and by notice that said dwelling bouses could be used for tbe purpose of private residence only, and that tbe keeping of boarders and roomers would not be permitted except upon special license if granted by tbe plaintiff. Plaintiff says that tbe defendants went into possession under their lease and are now in possession, and prays that an account be taken of tbe indebtedness existing between plaintiff and tbe defendants respectively, that they be ordered to pay into court tbe amount found to be due, and be enjoined from renting beds or rooms in bis dwelling bouse, and for other relief.
    Each of tbe defendants for answer, not denying that plaintiff is a corporation, nor that tbe lease was as alleged, nor that a dwelling bouse has been erected on said real estate, nor that defendant has refused and still refuses to pay to tbe plaintiff any money for each and every bed above tbe number of four in said dwelling, nor that tbe defendant intends to rent rooms in said dwelling bouse in tbe future, nor that be declares that be will not pay and is under no obligation to pay to plaintiff any consideration whatever for the pretended privilege of so doing, denies each and every other allegation and averment contained in the petition. Each defendant says that he was induced to build as he did upon the representation by the plaintiff that he would he permitted to rent and lease the rooms of his dwelling, and that the house is constructed as a dwelling house and with special reference to the renting and leasing of part of the rooms thereof, of which the plaintiff had full notice and knowledge and made no objection thereto, and that if defendant is not permitted to use said house for the said purposes for which the same was constructed the value thereof will be thereby greatly impaired and lessened and all without the fault of the plaintiff. In the Dudley case there is the additional averment that if the use of said house as described in the petition is a use of the premises for purposes other than of a private dwelling or residence only that defendants have received special permission from the plaintiff so to use said premises. Defendants also deny the corporate power of plaintiff to maintain and operate a hotel.
    By way of cross-petition each of the defendants alleges that plaintiff, by the erection of gates between said dwellings and the highway, prevents defendants from having access to their dwellings from the highway except upon payment of certain sums of money to the plaintiff, and prays that the plaintiff may be enjoined from maintaining said gates and from excluding the defendants from having access to or the possession of said lands and the dwelling houses situated thereon. Plaintiff denies the statements of the answers, and by way of answer to the cross-petitions, says that they have charged certain sums to the defendants and to all others for the right and privilege of using that portion of the park in possession of the plaintiff, that is, the beach, the grove, and certain paths and byways accessory thereto; and that when the defendants entered into the-contract of lease, they received notice that they would be obliged as part of said contract to pay-said fee, and that they have always and without complaint paid the same.
    The findings of the circuit court are as follows:
    “This cause coming on for hearing upon the petition of the plaintiff, the answer and cross-petition of defendant, George Van Dusen, the reply and answer of plaintiff, and the reply of defendant, and the evidence submitted, upon due consideration and. at the request of plaintiff made in open court when the decision was rendered, the court finds the following facts, and its conclusions of law, separately: First — That the plaintiff is a corporation duly incorporated under the laws of Ohio, having for its object the owning and holding of land for the purpose-of carrying on religious exercises and meetings upon the same, and the said plaintiff was prior to the-31st day of August, 1891, the owner in- fee simple-of all that tract of land lying along the shore of Lake Erie, in the village of Vermillion, Erie county, Ohio,, and known as Linwood Park, and including the-premises leased by plaintiff to defendant. Second— That on the 31st day of August, 1891, plaintiff entered into a. written contract of lease with defendant, under the terms of which plaintiff leased to defendant, his executors, administrators and assigns for-the term of ninety-nine years, renewable forever,, without fee, and for a consideration of $100.00 paid to plaintiff, what is known as lot 1, being thirty feet, front by fifty feet deep in block 13 of said Linwood Park, Erie county, Ohio, as designated on recorded plat of the same. Said contract was made upon the following conditions: That the party of the second part, defendant, for himself and legal representatives and assigns, covenanted w>.th the said pf. rty of the first part, plaintiff, that he would pay all lawful taxes and assessments made by any or all lawful authorities promptly as they might become due. He also agreed to pay such amounts not exceeding one (1) per cent, per annum of the appraised value as it appears on county tax duplicate, for sanitary purposes and improvements of streets, as the directors of the company might assess. That he would keep said premises in such condition as the sanitary and police regulations of the company might require, ancl during all meetings would be subject to the rules and regulations of said meetings. That he would not permit spirituous, vinous or fermented liquors to be sold or given away by himself or any one else, either by wholesale or retail, on said premises, and that he would not engage or permit others to engage in any occupation, business or practice on said premises that in any way conflicted with or was in violation of any law or laws of the state of Ohio, in force in the year 1884, and that he would use such premises for the purpose of a private dwelling or residence only, except on special permit from the company. Third — That in the year 1890 and before the making of said contract of lease, with the knowledge and consent of plaintiff, defendant took possession of and built upon his said lot a frame dwelling house two stories in height, containing seventeen rooms, designed for occupancy during the summer months only, said house covering almost the entire lot, and that since and including the year 1890 down to the bringing of 
      
      this suit defendant has rented said rooms in such house to different persons, sometimes for a day, ttoo days, a week or a month; has furnished to said tenants cots and beds and tables in their rooms, bed-clothing, cooking utensils and tableware, and the tenants were permitted to do their own cooking on stoves furnished by defendant in one large room on-the ground floor, and during that period there have been at times as many as fifteen or twenty people occupying rooms and cooking their meals and eating the same in said dwelling, and defendant has declared his intention to so rent furnished rooms in said building without paying anything therefor, and-declared that he is under no obligation to obtain any permit from plaintiff for that right. Fourth — That said dwelling house was so constructed by defendant with the intention of, and for the purpose of, using the same as a dwelling, and with the intention of renting and leasing rooms thereof, of which intention and purpose plaintiff from and during all the time of the construction of said house had full knowledge and notice, and that plaintiff made no objection to the said construction of said dwelling for said purpose, nor to the renting and leasing of the rooms thereof, until several years after the completion thereof, and that plaintiff had during all said time full knowledge that defendant had during several years rented furnished rooms in said dwelling, and that plaintiff made no objection thereto, and made no demand or claim for payment to plaintiff on account thereof until the year 189J/.. That in February, 1894, plaintiff, through its board of directors* passed a certain resolution by the terms of which the defendant was required to pay to the plaintiff for the privilege of renting rooms in said dwelling the sum of twenty-five dollars for that year. And thereafter plaintiff demanded of the defendant the sum of $25.00, which sum of $25.00 was paid by defendant’s tenant of said premises, said tenant then being in possession thereof, and said tenant on settlement with defendant for the rent withheld from defendant and by defendant’s consent on account of such payment having been by said tenant made to plaintiff, the sum of $25.00. That in the year 1895 plaintiff, by its board of directors, passed a like resolution, requiring the defendant to pay to the plaintiff the sum of twenty-five dollars for a like privilege of renting rooms f >r that year. And thereafter plaintiff demanded of the defendant the sum of $25.00, which sum of $25.00 the defendant refused to pay. And in the year 1896 said plaintiff, by its board of directors, passed a resolution requiring the defendant to pay to the plaintiff for that year the sum of $1.50 for each bed in said dwelling above the number of four. And thereafter plaintiff demanded of the defendant the sum of $1.50 for every bed above the number of four in said dwelling, and that defendant refused to pay the same. That in the years 1896 and 1897 the defendant refused to pay any money %ohatever to the plaintiff on plaintiff’s claims therefor on account of the renting of rooms by defendant in said dwelling. That during the summer months of the years 1890, 1891, 1892, 1893, 1894, 1895, 1896 and 1897, the defendant has rented to different tenants the rooms in said dwelling, and that the defendant having refused to pay to the plaintiff any sum whatever during the years 1895, 1896, and 1897 on account of the renting of such rooms, this action was brought to restrain the defendant from making such use of said dwelling. Fifth — That defendant at the time he was building said •dwelling, and before he made his written contract with plaintiff, paid such gate fee as the plaintiff then prescribed, and has since said time always paid such gate fee as plaintiff from time to time prescribed, and without objection up to the time of the bringing of this action. Sixth — That said Linwood Park, including defendant’s premises, has always since plaintiff’s incorporation in 1884, been enclosed by a high picket fence with a gate on its southern side, leading out on the public highway. That while said park is within the precincts of the village of Vermillion, the village authorities have never lighted or policed or graded or repaired the streets of the park, or any portion of said park, or exercised any control of any kind over them, and that defendant by the terms of his lease agreed with plaintiff that he would pay sucb amount, not exceeding one (1) per cent, per annum of the appraised value as it- appeared on the county tax duplicate, for sanitary purposes and improvements of the streets. Sixth (a) — The court further-finds that on a plat of the Linwood Park ground in the recorder’s office at Sandusky, O., the following ■entries are made, to-wit:
    Sandusky City, O., June 9, 1884.
    I hereby certify the within to be a correct plat of part of Lots Nos. 26 and 25, sec. No. 1, Vermillion township. Said plat is laid out in feet and tenths of feet, the courses, widths of streets, avenues and lengths of boundary lines of all the lots are indicated ■on the plat. Albert JudsoN, County Surveyor.
    I hereby certify that the annexed plat was approved by the council of the village of Vermillion by ■ordinance passed on the 24th of July, A. D., 1884.
    George Krapp, Clerk of said Village pro tern.
    
      The Linwood Park Company, by its president, William Horn, hereby consent to the above plat and ■survey, and the same plat and survey was made at the request of said company. In testimony whereof said company, by its president, sets its hand this 11th day of June, A. D., 1884.
    Linwood Park Company,
    By its President, William Horn.
    State' of Ohio, Cuyahoga County, ss: Before me, ■a notary public in and for said county and state, appeared the above company, by its president, William Horn, and acknowledged the signing of the above instrument for the purposes therein expressed. In witness whereof I hereunto set my hand and official seal this 11th day of June, A. D. 1884.
    (Seal) George Hester, Notary Public.
    State of Ohio, Erie County, ss: Before me, C. B. Winters, a notary public in and for Erie county, Ohio, personally appeared Adam Bornheimer, who acknowledges that he is the secretary of the Linwood Park Company, and their agent duly authorized in writing for the acknowledgment of the annexed plat of land owned by said Linwood Park Company, a corporation of the state of Ohio, which is hereby dedicated as an annexation to the incorporated village of Vermillion, Erie county, Ohio, under the laws of the state of Ohio, in every respect except that the streets laid out in said map are not dedicated for public use and the title to the same is not vested in the said village of Vermillion, but the title to the same shall forever be and remain in the said Linwood Park Company, under such rules and regulations as ■said Linwood Park Company may prescribe for the use of purchasers of lots abutting thereon and other parties having access thereto, and vacant space of about nine (9) acres not subdivided into lots is reserved for a public park, and the title therein shall remain vested in the said Linwood Park Company subject to its rules and regulations, for the more particular description of which plat reference is hereby made to the survey and field notes of Albert W. Judson, county surveyor of Erie county, Ohio, said June 9th, A. D. 1884.
    Adam Bornheimer, Agent Linwood Park Company.
    In testimony whereof I have hereto signed my name officially and affixed my notarial seal, this 24th day of June, A. D. 1884.
    C. B. Winters,
    (Seal) Notary Public.
    Received July 28th and recorded August 2, 1884.
    James Flynn, Recorder.
    
    Seventh — That the religious meetings held at said park, during which time sermons and lectures are given by various religious organizations under agreements with plaintiff given to such organizations each privileges, but that in other respects the park grounds are under the rules and regulations of the plaintiff, and that plaintiff has at various times prior to the, date of the contract of defendant passed rules and regulations requiring all persons entering the park to pay an admission fee at the gate at all times during the summer season and an additional fee at the times of such religious meetings. Eighth — That the grounds of said park owned by plaintiff contain a hotel, a large dining room, and lodging house, a pavilion for musical entertainments, a tabernacle for religious and other meetings, a large stand from which confections and refreshments are sold, and a large bath and boat house on the beach, all of which are owned by plaintiff and none of which are free to the defendant’s use. Eight and One-Half — The gate fees are used for keeping up the park and its buildings and maintaining a superintendent in summer and winter to look after the same. Ninth — Before defendant made his contract of lease the plaintiff, through its board of directors, had passed regulations requiring the payment of fees from every one for the privilege of entering the park during the summer months and an additional fee at the times of holding the religious meetings, and defendant always paid such entrance fees from time to time when demanded of him by plaintiff without protest. The court therefore finds as its conclusions of law, and adjudges and decrees: First — That defendant may assign his lease and estate thereunder in whole or in part and that said defendant' or his lessees or assigns may rent for compensation either the whole of said premises or any portion of the same or any number of rooms in said dwelling, to as many different tenants as the same will accommodate, and for any length of time from one day to one year, or longer, and that for the proper accommodation of said tenants defendant or his assigns may furnish said rooms with beds or cots, bedclothing, carpets and curtains, to be used by said tenants in said dwelling, and that defendant or his assigns may further furnish their said tenants with cooking utensils, tableware and cooking stoves, and permit said tenants to cook and eat their meals on said premises, and defendant or his assigns are under no obligation to obtain a permit from plaintiff for so doing or to pay any sum of money whatever therefor.
    
      Second — That defendant at all times before going into the park or entering the park gate must pay such reasonable entrance fee as plaintiff may prescribe, such fee to be uniform with the fees charged to and demanded of other persons who may own real estate in said park.
    Third — That said written contract of lease with defendant did not waive or abridge the right of plaintiff theretofore exercised and existing to charge such uniform fees at the gate at all times.
    It is further ordered that the petition and cross-petition of plaintiff and defendant be dismissed and that the defendant pay one-third and that the plaintiff pay two-thirds of all costs in this action for which execution is awarded. Whereupon plaintiff excepted then and there to all the conclusions of law except those relating to gate fees, and defendant excepted to all conclusions of law relating to gate fees. Whereupon on the same day both plaintiff and defendant filed their motions for new trial, which by the consideration of said court were overruled, to which overruling both plaintiff and defendant then and there excepted.”
    Also the following additional facts were found in the Dudley case:
    
      Fourth — That in the month of June, 1895, and during the building of the said dwelling house of the defendants, after the plans therefor had been perfected and after the foundations thereof had been laid and the same enclosed, plaintiff, then having full knowledge that defendants toere constructing said dwelling with the intention of renting and subletting rooms therein, notified said defendants that they would be required to pay for the privilege of renting rooms for hire in their said dwelling house, and that defendants 
      
      thereupon enquired of plaintiff what the charge would he, hut were not then informed and that thereafter on demand of plaintiff made in the fall of 1895, defendants did then pay to plaintiff the sum of $15.-00 on account of the said renting of rooms during the year 1895, and that in 1896 a resolution toas passed by plaintiff requiring the payment of $1.50 for each bed above the number of four, but at that time defendants refused to pay anything under said resolution.
    
    The plaintiff in error claims that the circuit court erred in rendering a decree for defendants and that the decree should have been for the plaintiff. The defendants in error respectively claim by way of cross-petition in error that the circuit court erred in dismissing their cross-petitions.
    
      Hamilton, Hamilton & Smith, for plaintiff in error.
    
      W. B. Bedortha, for defendants in error.
   Davis, J.

The parties to these leases had the right to make any restrictions upon the mode of enjoying the leased property which they might agree upon, provided that such restrictions should not be contrary to public policy. The Round Lake Association v. Kellogg, 141 N. Y., 348. The circuit court found that each of the leases contained the following covenants by the lessee, viz.: “that he would use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company,” and that he “during all meetings would be subject to the rules and regulations of said meeting.” It is also found as a fact in the cases that the plaintiff is a corporation having for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings on the same. In view of this object the defendants acquired their leaseholds, and in furtherance of this object the plaintiff exacted these restrictive covenants from the lessees. To state it in another form, the leases were given and received in furtherance of the purpose of the plaintiff’s existence, that is, to keep up religious meetings and literary entertainments and maintain summer homes for those who resorted to the place; and the defendants, in good faith, ought to be bound not only to the plaintiff but to the other lessees as-well, to carry out the common design. We can see nothing unreasonable in the covenants, and nothing in them contravening public policy. They are therefore valid and binding obligations, unless the plaintiff is estopped or must be held to have waived them. ,

To constitute a waiver it must fairly appear that there was an intention to waive the covenant right, and the waiver must be founded upon a consideration. Neither of these essential facts appears in the findings of the circuit court. Whether there was a waiver operating by estoppel depends upon the effect to be given to the finding that these defendants constructed their dwellings with the intention and purpose, not only of using the same for dwellings but also with the intention of renting rooms therein, and that plaintiff had notice of such construction and intention and of the actual renting of rooms, and made no objection thereto, and made no demand for payment during several years. It does not appear to us that the mere sufferance of the plaintiff, unaccompanied by any statement or conduct which misled the defendants, would work an estoppel. Indulgence to the defendants, whatever the motive, could not work them any injury; nor could it confer upon them the right to commit a breach of their covenants. No “special permit from the company” was given; and the plaintiff did not represent to the defendants, or give them good reason to believe, that it would release its rights under the contract. Indeed, in the Dudley case the plaintiff notified the defendants during the construction of their building^ that they would be required to pay for the privileges of renting rooms for hire in their dwelling house, and on demand from the plaintiff payment was made regularly until the time when these lessees became refractory.

These cases, then, come up on the question whether the defendants have committed a breach of their covenants in the lease. It is insisted by the defendants that as they are not. restricted as to assignment' or under letting, by the leases, they may sub-let or assign as they see fit, even to the extent of renting all the rooms in the house to as many different tenants. This is no doubt true as an abstract proposition of law; but in these cases it is limited by the covenant that they shall use the property for the purposes of a private dwelling or residence only, except on special permit from the company. They may exercise their right to assign or sublet freely until they subject the property to uses other than that of a private dwelling or residence. The moment they do that they have broken the covenant, unless they have done it under a special permit from the company. Now have they subjected the property to a use different from that covenanted? For it is admitted by the defendants that they have rented rooms in their dwellings without permission from, and in defiance of, the company. The findings of the circuit court indicate that they have done this so systematically, and to such an extent, as to amount to a business. Yet they insist that each house is still a dwelling house, or at least a collection of dwellings. “Each of such tenants,” says, the counsel for defendants, “used his apartments for the purposes of a private dwelling.” But the plain provision of the covenant is that the leased premises, shall be used for the purposes of a dwelling or residence only,» not for a number of dwellings. More than that, they are restricted to the use of it for a private dwelling or residence; and that is not a private dwelling or residence which is used in the business of renting rooms to lodgers or tenants.

A lodger is one avIio has the right to inhabit another man’s house. One who lives in a hired room or rooms in the house of another. 1 McAdam Landlord & Tenant, 619. Century Dictionary: A lodging house is a house where lodgings are let. Century Dictionary: “The distinction (between lodgers and tenants) may, in some cases, be fairly drawn, and may depend upon the character of the hiring, with reference sometimes to the business of the lessor and the presumed intention of the parties, as gathered from all the other surrounding circumstances of the particular case. The tenant is put into the exclusive possession of his rooms, while the boarder or lodger has merely the use of them without the actual or exclusive possession, which is in the lessor subject to such use.” 1 McAdam Landlord & Tenant, 621.

In Rose v. King, 49 Ohio St., 213, 227, this court, per Spear, J., adopted the following definition of a “tenementhouse:” “A building,the different rooms or parts of which are let for residence purposes by the possessor to others, as distinct tenements, so that each tenant, as to the room or rooms occupied by him, would sustain to the common landlord the same relation that the tenant occupying a whole house, would to his landlord.” Now, while it is not necessary for our present purpose, to determine whether the use to which these dwellings were subjected was that of lodging houses or of tenement houses (and it was one or the other) it is manifest that it was not a use “for the purposes of a private dwelling or residence only.”

Under the cross-petition in error of the several defendants we are called on to review the finding of the circuit court that the written contract of lease with the defendants did not waive or abridge the right of plaintiff to charge' such uniform fees at the gate, at all times and to all persons. We have already said that the covenant by each of the lessees that he “during all meetings would be subject to the rules and regulations of said meeting,” was a lawful covenant; and that it was made in furtherance of the common design to maintain a summer resort and keep up religious services and literary entertainments. The collection of the gate fees was not an abridgment of the property rights of the defendants. It was a reasonable and voluntary concession on their part, when they acquired the leases to effectuate the object for which Linwood Park was created and maintained. It was a condition without which they could not have acquired the leaseholds and which they accepted. They ought not now to be heard to complain of if. We find no error in the dismissal of the cross-petitions.

If the defendants should be allowed to disregard these covenants it would speedily take the life of the enterprise by ta,king away its entire source of income. To restrain such an irreparable injury, the plaintiff is in our opinion clearly entitled to an injunction against each of the defendants in these cases.

The judgments of the circuit court dismissing the petitions of plaintiff are 'reversed and judgment given for plaintiff in all the cases. The judgments of the circuit court dismissing the cross-petitions of defendants are affirmed.  