Muilenburg v. Blevins

DenNY, J. The only assignment of error on this appeal is based on an exception to the judgment. Therefore, since no exceptions were taken to the findings of fact or the conclusions of law, the only question presented is whether the findings are sufficient in law to support the judgment. Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609; Fox v. Mills, Inc., 225 N.C. 580, 35 S.E. 2d 869; Worsley v. Rendering Co., 239 N.C. 547, 80 S.E. 2d 467; Stewart v. Duncan, 239 N.C. 640, 80 S.E. 2d 764; Wyatt v. Sharp, 239 N.C. 655, 80 S.E. 2d 762; Glace v. Throwing Co., 239 N.C. 668, 80 S.E. 2d 759. The findings of fact on this record are sufficient to support the judgment entered below, and the exception thereto must be overruled. We think, however, it might be well to make some observations with respect to actions instituted for the purpose of striking down restrictive covenants. In the instant case there would seem to be no doubt of the character of the community in which the plaintiffs’ property lies having-changed radically and fundamentally from a residential to a business community since the restrictive covenants were imposed 44 years ago. This is so evident that the Zoning Board of the City of Charlotte in January 1947 zoned all the property in this immediate area, fronting on Providence R.oad, including the property of the plaintiffs, for business. It is said in 14 Am. Jur., Covenants, Conditions and Restrictions, section 302, page 646, et seq.: “A change in the character of the neighborhood which was intended to be created by restrictions has generally been held to prevent their enforcement in equity, where it is no longer possible to accomplish the purpose intended by such covenant, . . . and, owing to the changed conditions, the enforcement of the covenant would be of no benefit to the party seeking an injunction, but, on the other hand, would result in an increased value of his premises by a departure from the restrictions, or where enforcement would' be inequitable,” citing Starkey v. Gardner, 194 N.C. 74, 138 S.E. 408, 54 A.L.R. 806. According to the affidavits submitted in the hearing below, the neighborhood in which the property of the plaintiffs is located has changed to the extent that plaintiffs’ property is relatively valueless as residential property and, on the contrary, has become useful and very valuable for business purposes. An apartment house is located on the lot adjacent to the plaintiffs’ property to the east on Circle Avenue. In this same block at the corner of Circle Avenue and Willoughby Street, according to the record, is a plumbing and heating establishment. Adj a-cent to the property of the plaintiffs on the south is an apartment house, *276 while on the west side of Providence Road opposite plaintiffs’ property the entire block is occupied by an apartment house, an office building and a filling station. Also to the south of the block in which plaintiffs’ property is located and on the same side of Providence Road, 21 business establishments are located within the next five blocks. On the west side of Providence Road and within the two blocks immediately to the north of plaintiffs’ property, an ABC store, a beer and soda shop, a barber shop and four apartment houses are located. A filling station is located within the subdivision in the block immediately south of plaintiffs’ property on the east side of Providence Road, and a restaurant and funeral home on the opposite side of the Road. While it is true that under our decisions the construction of an apartment house is permissible under restrictions limiting the use of property for residential purposes only, De Laney v. Van Ness, 193 N.C. 721, 138 S.E. 28, 57 A.L.R. 238, it is becoming a rather general practice to exclude apartment houses from restricted residential areas. In light of the facts found by the court below, which findings are supported by ample evidence, and our decision in Elrod v. Phillips, 214 N.C. 472, 199 S.E. 722, it would seem these litigants are entitled to the relief granted. Even so, in an action brought for the purpose of having restrictive covenants in a deed declared null and void, it should be made to appear in the hearing in the Superior Court whether or not the subdivision in which the property involved is a part, was originally developed and sold under a uniform scheme or plan of development which required the restrictive covenants to be inserted in all deeds for the benefit of all owners of property within the development. This information is necessary in order to determine whether or not such covenants are enforceable inter se. Maples v. Horton, 239 N.C. 394, 80 S.E. 2d 38; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Vernon v. Realty Co., 226 N.C. 58, 36 S.E. 2d 710; Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; Homes Co. v. Falls, 184 N.C. 426, 115 S.E. 184; Stephens Co. v. Homes Co., 181 N.C. 335, 107 S.E. 233. Ordinarily, unless it affirmatively appears that the property involved was not sold pursuant to a general scheme or plan of development, and the restrictive covenants were not inserted in all the deeds for the benefit of the owners of property within the development, Maples v. Horton, supra; Phillips v. Wearn, 226 N.C. 290, 37 S.E. 2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; Snyder v. Heath, 185 N.C. 362, 117 S.E. 294, the cause will be remanded to the end that those parties who may have the right to enforce the covenants inter se or otherwise, may be made parties to the action. Sheets v. Dillon, 221 N.C. 426, 20 S.E. 2d 344. But in view of the facts found herein and our former decision in Elrod v. Phillips, supra, in which this *277 Court approved the nullification of similar restrictions to property in this subdivision, the judgment of the court below will be upheld. Affirmed.