Elrod v. Phillips

ScheNCK, J. All of the findings of fact by the court are amply sustained by the evidence. The question presented for our consideration is whether the findings of fact sustain the court’s conclusions of law. We have two lines of decisions in this jurisdiction involving the circumstances under which restrictive covenants in deeds for property originally devoted to residential purposes are rendered unenforceable or are enforced. The leading eases where such restrictions were held unenforceable are Starkey v. Gardner, 194 N. C., 74, and Snyder v. Caldwell, 207 N. C., 626, and the leading cases wherein such restrictions are held enforceable are Johnston v. Garrett, 190 N. C., 835, and McLeskey v. Heinlein, 200 N. C., 290. The defendant contends that the court erred in holding that restrictions in the deeds involved in the instant case were unenforceable for the reason that there is no evidence or finding of fact to the effect that there has been any substantial change in the use of the property within the boundary of the subdivision as originally laid out and restricted. While there may be some persuasive reasoning and authority for this contention, it is not compelling and we do not concur with the conclusion that such change is a sine qua non to sustain the plaintiff’s position. In Starkey v. Gardner, supra, it is said: “However, it is equally true that if the character of the community has been changed by the expansion of a city and the spread of industry or other causes resulting in a substantial subversion or fundamental change in the essential character of the property, then, in such cases, equity will not rigidly enforce the [478] restriction. In Ward v. Prospect Manor Corp., 206 N. W., 856, decided 12 January, 1926, tbe Supreme Court of Wisconsin said: 'Courts of equity will not enforce sucb restrictive covenants where tbe character of tbe neighborhood has so changed as to make it impossible to accomplish the purpose intended by such covenants. This may result from circumstances over which neither plaintiff nor defendant nor- other resident of the community has any control. As in Rowland v. Miller, 139 N. Y., 93, 22 L. R. A., 182, 34 N. E., 765, where the erection of a steam railway and the construction of a station rendered the neighborhood, and especially the defendant’s property, in front of which the station was erected, unfit for use for residential purposes to which it was intended to confine the restricted area. Such changed conditions may result from the natural growth of the city, bringing industry, smoke, soot, and trafile into such close proximity to the restricted area as to render it undesirable for the purposes to which it is restricted. . . We are of the opinion, and so hold, that the instant ease is governed by Starkey v. Gardner, supra, and Snyder v. Caldwell, supra, and the judgment of the Superior Coust is therefore Affirmed.