Higgins v. Hough

Brogden, J. There is no allegation and no finding of fact to the effect that the property in controversy was a part of a general plan or scheme. The trial judge found as a fact that by reason of the growth and expansion of the city the essential nature and character of the property [654] has been changed. The record discloses ample evidence to support the findings of the trial judge. These findings of fact bring the case squarely within the principle announced by this Court in Starkey v. Gardner, 194 N. C., 74, 138 S. E., 408. In that ease it was said: “The weight of authority is to the effect that if substantial, radical and fundamental changes have taken place in a development protected by restrictive covenants that courts of equity will not enforce the restriction. The underlying reason is, we apprehend, that such changes destroy the uniformity of the plan and the equal protection of the .restriction.” The authorities upon the subject are set out in the Starkey case and we deem it unnecessary to repeat them here. Affirmed.