Robinson v. Pacemaker Investment Co.

.BALEY, Judge. Plaintiffs make two basic contentions: (1) that the restrictive covenants applying to Robinson Heights Subdivision forbid the construction of any dwelling within 15 feet of the interior lot lines of Lots 3, 4 and 5 of Block E as shown on the original plat of the subdivision; and (2) that defendants are “attempting to violate” the restrictive covenants by petitioning authorities to permit, withdrawal of unused streets in the subdivision and by proposing to widen other streets. Defendant Baugh has resubdivided Lots 3, 4 and 5 and one-half of Lot 6 to make new lots designated as 3A, 4A, 5A and 6A and is building houses which admittedly are actually located upon and extend across what were formerly the interior lot lines of Lots 3, 4 and 5; however, they are not within 15 feet of the interior lot lines of the new lots 3A, 4A, 5A and 6A and comply in all respects with the other requirements of the restrictive covenants. See Map, Court’s Exhibit 1. The trial court held that constructing houses upon the old side lot lines of Lots 3, 4, and 5 did not “constitute a violation of the restrictive covenants as long as the dwellings conform to the minimum setback requirement in relation to the new front and side lot lines created by the resubdivision of Baugh Development Company,” and we agree. Transfer of lots by reference to a recorded map of a subdivision does not of itself imply any covenant that the owner of the subdivision will not sell the remainder of the subdivision except in parcels delineated on the map. Turner v. Glenn, 220 N.C. 620, 18 S.E. 2d 197. If plaintiffs are to prevail in this action, they must show that defendants have violated the restrictive covenants imposed on the subdivision by Jonas and Lottie Robinson in 1955. The key to interpreting restrictive covenants is the intention of the parties. Since they limit the free' use of property, restrictive covenants are construed strictly, Callaham v. Arenson, 239 N.C. 619, 80 S.E. 2d 619; Craven County v. Trust Co., 237 N.C. 502, 75 S.E. 2d 620; but not so strictly as to defeat the purpose of the restriction. Long v. Branham, 271 N.C. 264, 156 S.E. 2d 235; Franzle v. Waters, 18 N.C. App. 371, 197 S.E. 2d 15. “[T]he fundamental rule is that the intention of the parties governs . . . .” Long v. Branham, supra at 268, 156 S.E. 2d at 238. In determining the intention of the parties it is impor- [596] tant to consider the language of the covenants, the nature of the subdivision, the purpose of the restrictions, and surrounding circumstances at the time such restrictive covenants were created. In our view the restrictive covenants in this case by their language and purpose do not prohibit the resubdivision of the property or prevent the relocation of interior side lines of lots. In fact, they may well contemplate such resubdivision. The subdivision was created-for use for residential purposes limited to only one dwelling per lot with minimum cost and size for such dwellings. The lots were to have an area of not less than 11,000 square feet with a width of not less than 75 feet at the minimum building setback line. No building could be located on any lot nearer to the front line than 40 feet nor to the interior lot line than 15 feet. If the parties did not contemplate resubdivision, the provision requiring a minimum area would be meaningless as the lots would be unchangeable from the beginning. Since the area of the lots would be flexible, the limitations upon setback lines and the location of houses upon the lots give stronger assurance that the residential purpose for which the restrictions were created would be maintained even though the area of the original lots might be enlarged or reduced. In Callaham v. Arenson, supra, plaintiff owned four lots in a subdivision and sought to resubdivide them. The subdivision was subject to restrictive covenants similar to those in the present case. The court permitted such resubdivision since the new lots conformed to the requirements of the original restrictive covenants. An examination of the map in Callaham shows that building upon side lot lines of the old lots would be required for any development. We feel that Callaham is controlling here. Plaintiffs rely strongly upon Ingle v. Stubbins, 240 N.C. 382, 82 S.E. 2d 388, as limiting or overruling Callaham. In Ingle the lots concerned were comer lots and the builders sought to treat the front line of the lot as a side line and avoid the setback restriction prohibiting building within 50 feet of the front line. This would defeat the orderly arrangement of the dwellings upon streets in the subdivision which was the purpose of the front line setback restriction and permit an unplanned, irregular, and helter-skelter appearance. Such a damaging change could not have been intended by the parties, and the court construed the covenants to prohibit this type of resubdivision. Ingle is not in conflict with Callaham as both reflect the intent of the [597] parties under the factual circumstances of each case and follow logically from the principles used by the North Carolina courts in interpreting restrictive covenants. With respect to the contention of plaintiffs that Baugh is “attempting to violate” the restrictive covenants by petitioning for withdrawal of unused streets in the subdivision or using their own property to widen streets, these activities are in no way illegal; they do not concern building restrictions. The courts cannot enjoin defendants from engaging in activities which , are entirely legal merely because plaintiffs believe that they intend to commit illegal acts in the future. See, e.g., Membership Corp. v. Light Co., 256 N.C. 56, 59-60, 122 S.E. 2d 761, 763. The trial court found that there was no evidence that Baugh was violating or attempting to violate the restrictive covenants for Robinson Heights Subdivision, and this finding is supported by the record. Its action in refusing to grant the injunction sought by plaintiffs is affirmed. Affirmed. Chief Judge Brock and Judge Britt concur.