McNeil v. Gary

Mr. Justice Robb delivered the opinion of the Court: In the view we take of the case the averment that the proposed use of said stable will constitute a nuisance may be treated as surplusage. Since all deeds from Saul and others to lots in this subdivision contained the same restrictive covenants, it is apparent, we think, that those covenants were intended to inure, and did in fact inure, to the benefit of the several purchasers of said lots and subsequent owners thereof. As suggested in the bill, these restrictions were designed to carry out the general scheme of improvement of this subdivision. Each purchaser bought his lot with notice of this scheme, and, of course, with knowledge that every other purchaser would be influenced by it. In other words, the common understanding [400] evidenced by tbe restrictive covenants induced each pnrcbase. Under suck circumstances, it is plain tbat one owner bas a standing in equity to compel another to comply with the terms of his grant. “Equity enforces contracts and covenants in regard to property entered into between prior grantors and grantees, in regard to the use of property, especially if common property or property descending from a common source, against subsequent owners affected with actual or constructive notice of such contracts and covenants.” Trudeau v. Field, 69 Vt. 446, 450, 38 Atl. 162; Allen v. Barrett, 213 Mass. 36, 99 N. E. 575; Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628. Coming to the merits, we proceed to determine whether the erection of this stable is prohibited by the restrictive covenants affecting this subdivision. It must be remembered that this is a proceeding in equity, where forms give way to substance and where intent, gleaned from the language of the instrument and the circumstances surrounding the transaction, must govern. While doubts must be resolved in favor of natural rights and the free use of property, they must be founded on reason. Thus in Clement v. Putnam, 68 Vt. 285, 38 Atl. 181, A owned a lot the surface of which was some 8 feet below the sidewalk, and conveyed the southerly end of this lot to B, covenanting never to erect any “structure or building” on the part of the lot not conveyed, within 4 feet of the portion conveyed. B erected a building on his lot, and subsequently conveyed the balance of the lot to 0, subject to the condition in B’s deed. O thereupon erected a building within 4 feet of B’s line, and was proposing to fill up the space between the two buildings with earth to the level of the sidewalk. This was held not permissible. The court said: “The fair construction of the deed is that from the lowest level to which it applies, the space shall be kept vacant, and not that it shall be filled in a certain manner; and hence an earth filling may well be deemed a structure within the meaning of the deed. Any other construction would frustrate the manifest intention of the parties to the instrument.” In Brigham v. H. G. Mulock Co. 74 N. J. Eq. 287, 70 Atl. 185, it was held that the erection of a [401] double bouse under one roof constituted a violation of a covenant forbidding more than one building to be erected on one lot for dwelling purposes. See also St. Andrew’s Lutheran Church’s Appeal, 67 Pa. 512; Parker v. Nightingale, 6 Allen, 341, 80 Am. Dec. 632; Kraft v. Welch, 112 Iowa, 695, 84 N. W. 908; Rowland v. Miller, 139 N. Y. 93, 22 L.R.A. 182, 34 N. E. 765; 11 Cyc. 1077, 1078. It is admitted that the subdivision here involved is very desirable for residence purposes, and that all tbe lots that have been sold are now used exclusively for such purposes. Having these circumstances in mind, what is the reasonable construction to be placed upon the restrictive covenants before us? Each grantee of said original holders covenanted, first, that not more than one dwelling house would be erected on his lot, and that no apartment house or flat of any description would be erected; and, second, that such building should not cost less than $3,500, and should not be used for manufacturing, mechanical, or business purposes of any kind, but solely for dwelling purposes. It is not disputed that had the appellee erected a bungalow on the back of her lot, and then attempted to devote that structure to any business purpose, or, specifically, to the purpose to which she now proposes to devote the structure she is now erecting, she would be subject to the restraining hand of the court; in other words, that her act would be in violation of said covenants. This, of course, inevitably follows from the language of the covenants, and, we think, as clearly demonstrates the weakness of appellee’s position. Those who purchased lots in this subdivision were not so much concerned about the possibility that some dwelling house might be devoted to a business purpose as they were that the subdivision should be exclusively devoted to dwelling purposes. To assume that such purchasers for a moment supposed that these covenants might be construed to mean that stores, moving picture shows, garages, and structures of like character might be erected on those lots, if erected as such, is entirely to disregard the scheme under which this subdivision was to be developed, and is to convict the purchasers of those lots of a lack [402] of intelligence. In tbe first place, tbe provision that not more than one dwelling bouse shall be erected on a lot was intended to exclude the erection of other structures. This is-made manifest by the second clause of the first covenant, that no apartment nor flat shall be erected. The parties evidently feared that an apartment house or flat might be regarded as a dwelling house within the meaning of the preceding clause, and hence expressly excepted it from said class. The first restriction in the second covenant, that no such building, that is, no such dwelling house, shall cost less than $3,500, emphasizes what was apparently in the minds of the parties, that this subdivision should be devoted to a good class of dwellings. The next clause prevents, in terms, the use of any dwelling house for manufacturing, mechanical, or business purposes of any kind. It seems to us that no one purchasing one of these lots and accepting a deed containing these covenants could reasonably fail to understand that he could not do in one way what he was forbidden to do in another; in other words, that the provision that no more than' one dwelling house should be erected on a lot, coupled with the provisions that it should cost not less than $3,500, and not be used for any other purpose, meant that this subdivision should be devoted to dwelling, and not business, purposes. The result, and not the manner of achieving it, is material. Unless these covenants are to be given this construction, they become a mere jumble of words, and their obvious intent is frustrated. We conclude, therefore, that the court erred in sustaining the demurrer. The decree will be reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.