Charlotte Consolidated Construction Co. v. Cobb

Stacy, 0. J., after stating the case: The principal question for decision is whether a building restriction in a deed which provides that the lot of land thereby conveyed “shall be used for residential purposes only . . . and there shall not at any time be more than one residence or dwelling-house on said lot (servants’ house excepted),” is *692 violated by tbe erection on, said premises of an apartment bouse containing four apartments, eacb designed for tbe separate accommodation of a family or family group. The plaintiffs assert the affirmative of this question and rely upon Bailey v. Jackson, 191 N. C., 61, 131 S. E., 567, where the covenant, among other things, prohibited the building of more than “one residence” on a lot. The defendants assert the negative and cite as authority Delaney v. VanNess, 193 N. C., 721, 138 S. E., 28, where an apartment bouse was held not to violate a covenant against the erection of “any structure except a dwelling-house”; because, it was said, an apartment house, used for residential purposes, is a dwelling-house. Conceding, then, that an apartment bouse may be more than one residence, is it more thanN“one residence or dwelling-house” when used for residential purposes only? Tbe trial court was of opinion, and accordinglyt^eld, that tbe restriction in question did not prohibit tbe erection of an apartment bouse such as tbe defendant proposes to build. In this, we are disposed to concur. ’ An apartment bouse, used for residential purposes only, has been held to be a dwelling-house, hence if tbe expression “dwelling-house” be changed to one of its equivalents, “apartment bouse,” tbe restriction would then read: there shall not at any time, be more than one residence or apartment bouse on said lot (servants’ bouse excepted). If tbis were its language, and such we apprehend is one of its permissible meanings, tbe correctness of bis Honor’s ruling would hardly be subject to debate. Residence is a more restricted term than dwelling-house, and it would seem to be a refinement of construction to say that the two words, as here employed, were used synonymously, idem re el sensu: Rather it would appear that the second, which has the broader signification, was intended as an enlargement over the first. Hutchison v. Ulrich, 145 Ill., 336, 34 N. E., 556, 21 L. R. A., 391; 18 C. J., 391. If the parties had wished to prohibit the building of an apartment house on the defendant’s lot, they could easily have said so in language clearly importing such intent. It is the position of a number of courts that, in the absence of clear and unequivocal expressions, restrictive covenants ought not to be expanded, but rather buckled in against those claiming their benefit and in favor of free and unrestricted use of property. 27 R. C. L., 756, et seq. “It is a well settled rule that, in construing deeds and instruments containing restrictions and juohibitions as to the use of property conveyed, all doubts should be resolved .in favor of the free use thereof for lawful purposes in the bands of the owners of the fee.” Hunt v. Held, 90 Ohio, St., 280, 107 N. E., 765, L. R. A., 1915 D., 543. *693 We think the restriction in question is aimed more at the character of the building with reference to the purposes for which it is to be used, than at its architectural design. A building occupied by four families is no less a dwelling-house than one occupied by a single family. The house is not necessarily doubled, trebled or quadrupled simply because it is occupied by two, three or four families, instead of one. Speaking to a similar question in McMurtry v. Phillips Invest. Co., 103 Ky., 308, 45 S. W., 96, 40 L. R. A., 489, Hazelrigg, J., delivering the opinion of the Court, said: “It is shown, indeed admitted, that these different apartments or flats are places for persons to reside in, hut it is contended that the language of the restriction conveys the idea of a single residence for a single family or at any rate excludes the idea of a number of residences under the same roof or in the same house. We think, however, that to give the language used, this meaning would be to extend its scope beyond the expressed intention of the parties. The purposes for which the house is to be erected on the court were to be-used were ‘residence purposes only.’ And as the house in controversy is to be constructed for such purpose only and is not to be used for any other' purpose, we do not think its construction is at all prohibited by this restriction clause. If the intention had been to permit the erection of only segregated private residences, the instrument would doubtless have so provided.” The building which the defendant proposes to erect is a single structure, intended for residential purposes only. This is permitted by the restriction which is directed against the erection on the locus in quo of more than one residence or dwelling-house. That it is intended to accommodate a number of families does not ipso facto bring it within what is forbidden. Huntington v. Dennis, post, 759. Holding, as we do, that the complaint does not state facts sufficient to constitute a cause of action, it is needless to consider the other ground upon which the demurrer is based. Affirmed.