Lewis v. Wiggs

MoeRis, J. Defendants except to the overruling of their demurrer. They argue, on the authority of Chambers v. Dalton, 238 N.C. 142, 76 S.E. 2d 162, that there is a misjoinder of causes and parties. This assignment of error cannot be sustained. In Chambers v. Dalton, supra, several parties joined as plaintiffs and each sought to recover damages for injuries to their land caused by a breach of a restrictive covenant by the defendants. The Court correctly held that the several causes of action stated by the plaintiffs were separate and distinct, and that no one cause affected all parties. In the present case there is but one cause of action stated — that is to obtain a permanent injunction forbidding defendants to operate a business establishment on their property in Ridgecrest Subdivision so long as the restrictive covenants remain in force. Each of the plaintiffs being landowners in the subdivision, each is affected by this cause of action. “By statute all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs . . .”1 McIntosh, N. C. Practice 2d § 642. See G.S. 1-68. See Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; and Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; for cases in which several landowners joined in an action to enjoin permanently the violations of certain covenants. We think the stipulations and evidence fully support the [100] findings of fact made by the trial court and these findings fully support the judgment. It is true that in construing restrictive covenants all doubts should be resolved in favor of the free use of land. Construction Company v. Cobb, 195 N.C. 690, 143 S.E. 522. However, we do not feel that this restriction is unclear or vague. It prohibits the creation of a business establishment. The operation of a beauty shop is within this prohibition. We do not agree that this restriction has been waived or released or the right to enforce it lost by estoppel because of acquiescence by the landowners in the subdivision in permitting similar type home occupations to be carried out. Charles Shumate, an insurance salesman, testified that he had a filing cabinet and desk in his home, but that it was infrequent that a prospect would come to his house to discuss insurance. He did not advertise in the telephone book that he had an office in the Ridgecrest Subdivision. Two witnesses testified that they had purchased cakes from a Mrs. Smyk who lives in the subdivision, but that to their knowledge she did not have extra plumbing or wiring in her home. Edmund Brown, the owner of Brown Rubber Stamp Works, testified that the mailing address for his business was Ridgecrest Drive. However, he stated that his equipment for this business was in his print shop and that the telephone number on his invoice was the number of the shop. Dorothy M. Hussey testified that she sells decorative candles which she makes in her home. James Head testified that he had an office in his home with a desk and filing cabinet. However, he stated that he only used this office for night work and that he had a business office not in the subdivision. Eloise Meacham testified that she ran a “Welcoming Service”. She would call upon newcomers at their homes and give certificates from various merchants. She was paid by the merchants for this service; however, none of the merchants ever came to her home. Other than occasional typing and using the phone she did not transact any business at her home. We need not decide whether by these actions the various property owners in the subdivision have violated the restriction now in question. It is sufficient to say that the evidence does not show a change in the character of this neighborhood sufficient to invalidate the restrictive covenant. In order to invalidate a restrictive covenant it must be shown that a change in the character of the neighborhood which was intended to be created by the restriction has come about and that "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 re101 suit in an increased value of his premises by a departure from the restrictions, or where enforcement would be inequitable.” Muilenburg v. Blevins, 242 N.C. 271, 87 S.E. 2d 493. Also, see Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E. 2d 817. Finding of fact No. 4, to which defendants have abandoned their exception, provides . . there has been no change or alteration in the nature and character of Ridgecrest Subdivision as a residential neighborhood.” Neither do we think that the alleged violations of this restrictive covenant by landowners within the subdivision other than the defendants make it inequitable to enforce this restriction. In the judgment below we find No error. Mallard, C.J., and Campbell, J., concur.