Olmsted v. Schrembs

MIDDLETON, P.J. The evidence shows that the defendant is the owner of a part of lot four and all of lot five, as we understand it, as such lots are shown on the original plat. The plaintiff is the owner of a part of sub-lot seven as shown by the original plat. It follows, therefore, that between the’ premises of the plaintiff and those of the defendant are intervening premises which are owned by another party. It will be conceded, we think, that the deeds from the original owner, Rose, to the predecessor in title of the defendant contained the following restrictions and conditions: ' “The above named grantee, * * * hereby covenants and agrees with the said grantor * * * for the use and benefit of the said grantor * * * and of every other person who shall or may become the owner * * * or have any title * * * to the premises adjoining the above described premises on either side thereof, as follows, to-wit: 1. That for and during the next ensuing 50 years from and after the date hereof the premises herein conveyed shall not be used by said grantee, his heirs or assigns, for apartment or boarding house purposes, but shall be used for private residence purposes only. It is the claim of the plaintiff that the restriction limiting the use of the lot for private residence purposes only is being violated by the defendant and that the latter is now maintaining upon his property a convent, in which live a community of nuns who belong to what is known as the Cloister Order. By the express language of the restrictions and conditions quoted it appears that such re-trietions are limited to the benefit of owners of the premises adjoining the premises of the defendant on either side thereof. Admittedly the plaintiff is not and never was the owner of the premises adjoining on either side of the premises of the defendant. Restrictions in conveyances of property may not be extended by conjecture or implication. When doubtful the doubt must be resolved in favor of the grantee. Hunt vs. Hold, 90 OS. 280. It is clear, we think, that the premises protected by the restriction must be “adjoining premises” and on the side of the premises in question. This means that they must be premises which touch and are in contact with the premises complained of. The evidence shows that the owners of the premises adjoining the defendant’s property have consented to the use of such property as is now made by the defendant. In view of these considerations we must conclude that the plaintiff has no right of action. This conclusion makes it unnecessary to consider the remaining contentions made in this case. They are not material. We might say, however, in conclusion that we are not by any means convinced that the evidence establishes that a general and uniform plan of restrictions on all the property platted was ever adopted and put into effect by Rose. On the contrary the evidence clearly establishes that in the dis *596 position oí these lots Rose made various changes in the restrictions, particularly in the conveyances of the lots fronting on 105th Street, and we believe the evidence establishes that in the sale of one lot fronting on East Boulevard no restrictions whatever were imposed. The petition is dismissed at the cost of the plaintiff. (Mauek, J., concurs.)