Starmount Co. v. Greensboro Memorial Park, Inc.

EbviN, J. This litigation does not involve the question whether the restrictions invoked by the plaintiff were inserted in the deed to the defendant’s antecessors pursuant to a general plan for the development of Friendly Acres as a restricted community or neighborhood. Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918. The action is bottomed upon a quite different foundation. The plaintiff bases its prayer for relief upon individual and particular covenants constituting an express contract between it and the defendant’s predecessors and appearing in the defendant’s recorded chain of title. The plaintiff’s position is simply this: At the time of the original sale of the four acre tract, the plaintiff, as grantor, and the defendant’s ante-cessors in title, as grantees, made an express contract imposing specific restrictions upon the use of the four acre tract for the benefit and convenience of the plaintiff in its disposition or use of the other portions of Friendly Acres retained by it. Such contract was embodied in covenants inserted in the deed conveying the four acre tract to the defendant’s predecessors. Inasmuch as such deed constituted an essential link in the defendant’s chain of title and appeared of record at the time it acquired the four acre tract, the defendant took the four acre tract with notice of the restrictive covenants. The restrictions are reasonable in character and duration, and do not clash with public policy. Since it took the four acre tract with notice of the restrictive stipulations, the defendant cannot equitably refuse to perform them. Notwithstanding this, the defendant is about to breach the restrictions by appropriating the four acre tract to prohibited purposes which will diminish the enjoyment and impair the value of the substantial portions of Friendly Acres which the plaintiff *616 still owns. As an original party to tbe restrictive covenants, tbe plaintiff is entitled to an injunction to restrain tbe threatened breach. Tbe plaintiff’s position finds full support in authority and reason. Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18; Firth v. Marovich, 160 Cal. 257, 116 P. 729, Ann. Cas. 1912 D, 1190; Whitney v. Union Railway Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Sanford v. Keer, 80 N. J. Eq. 240, 83 A. 225, 40 L.R.A. (N.S.) 1090. This being true, tbe plaintiff is entitled to an injunction restraining tbe defendant from using tbe four acre tract as a means of access to tbe commercial cemetery on tbe unrestricted forty acre tract if tbe restrictions contained in tbe deed of 5 May, 1941, prohibit such use of tbe four acre tract. Tbe defendant contends with much earnestness and industry that tbe deed does not forbid its proposed use of tbe four acre tract. It asserts primarily that tbe instrument, properly construed, permits such use. It insists secondarily that tbe deed leaves tbe matter in doubt, and that tbe doubt must be resolved in its favor under tbe rule that restrictive covenants are to be strictly construed against tbe party seeking to enforce them. Edney v. Powers, 224 N.C. 441, 31 S.E. 2d 372. We do not deem either of these alternative contentions to be valid. A restriction of tbe enjoyment of property must be created in express terms, or by plain and unmistakable implication. Ivey v. Blythe, 193 N.C. 705, 138 S.E. 2. When tbe deed under scrutiny is read aright, it does these two things in express terms: First, it limits tbe use of tbe four acre tract to residential purposes, truck farming, and poultry raising; and, second, it prohibits tbe use of tbe four acre tract for any “business, manufacturing, or commercial purposes” other than truck farming and poultry raising. While these explicit provisions necessarily permit any use of tbe four acre tract reasonably consistent with its use for residential purposes, truck farming, or poultry raising, they plainly and unmistakably imply that tbe four acre tract is not to be put into service as an incident to a forbidden business or commercial enterprise, even though such enterprise is situated on adjacent unrestricted land. As a consequence, tbe defendant cannot use tbe four acre tract or any part of it as an entrance or driveway into tbe commercial cemetery located on tbe forty acre tract. Such use would violate tbe restrictions in question for it would be tantamount to dedicating tbe four acre tract to a prohibited business or commercial purpose. Our conclusion harmonizes with tbe decisions of tbe courts of other jurisdictions which have been confronted by tbe same problem. Mellitz v. Sunfield Co., 103 Conn. 177, 129 A. 228; Klapproth v. Grininger, 162 Minn. 488, 203 N.W. 418, 39 A.L.R. 1080; State ex rel. Stalzer *617 v. Kennedy, 46 Ohio App. 1, 187 N.E. 640; Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475. Since the restrictions were imposed on the four acre tract for the benefit and convenience of the plaintiff in its disposition or use of the portions of Friendly Acres retained by it, their efficacy is not impaired in any degree by the stipulation that “nothing herein shall preclude the Star-mount Company . . . from establishing business districts, or from establishing or allowing to be established hospitals, schools, hotels, or other institutions which in its opinion will be for the benefit of the community in which said property is located.” Town of Stamford v. Vuono, 108 Conn. 359, 143 A. 245; Kuhn v. Saum, 316 Mo. 805, 291 S.W. 104; Beetchonow v. Arter, 45 R.I. 133, 119 A. 758. Nevertheless, the injunction goes too far. It not only enjoins the defendant from using the four acre tract as an entrance or passageway to the cemetery, but it also restrains the defendant from using the four acre tract “for any other business or commercial purpose.” The judgment is hereby modified so as to permit the defendant to use the four acre tract for truck farming and poultry raising. As thus modified, it is affirmed. Modified and affirmed.