Pank v. Eaton

GOODE, J. (after stating the facts). — It was agreed by counsel at the argument that prior to the institution of the suit the defendants had set about the erection of a house or flat, two stories in height, planned for separate occupancy by tAvo families, one on the first and one on the second floor. Each story has a separate en [176] trance, one at either side of the house. Counsel desire us to decide whether such a structure is an infringement of the covenants in the deeds of the several proprietors. The only covenant said to be broken is the one providing that not more than one house shall be erected on each forty feet of frontage; but the other covenants may, of course, be looked to for enlightenment in interpreting the one directly involved. They throw no strong light on the meaning- of the latter covenant. The stipulation against business, prohibits the establishment of any of several kinds of enumerated occupations within the restricted territory, and also any business or proceeding not enumerated, which is prohibited by law. The kind of dwelling-houses which may be built is so far controlled that none costing less than $3,000 can be erected; and that is the only condition imposed in regard to dwellings. What we have to decide is the force of the stipulation against more than one house on each forty feet of ground. In other words, we have to determine whether the structure defendants proposed to erect was more than one house. In a recent case we went into the subject of restrictive covenants in deeds where the prohibition was. against more than one dwelling on a lot. [Sanders v. Dixon, 114 Mo. App. 229.] Such a covenant deals with the use of the premises and is intended mainly to prevent plural occupancy of a lot; whereas the present covenant is not. Hence, an interpretation ought to be given to the present covenant which will uphold the intention to exclude plural structures rather than plural uses. The purpose to be derived from the words émployed was to prevent the erection of more than one house on each lot. In our opinion a building of the sort described is one house and not two. A decision to the contrary is Ilford Park Est. v. Jacobs, 72 L. J. Ch. Div. 669. That was a nisi prius case and, as was pointed out in Sanders v. Dixon, the ruling is contrary to the judgments of English appellate tribunals in Kimber v. Adams, 69 L. J. Ch, [177] Div. 296, and Atty.-Gen. v. Tontine Assn., 44 L. J. Exch. (N. S.) 146. Plaintiffs cite Harris v. Roraback, 100 N. W. (Mich.) 391. The covenant therein dealt with was against more than one dwelling-house on a lot,.and it was held that each story of a two-story flat constituted a dwelling, or a dwelling-house. But manifestly the covenant in that case was designed to prohibit the occupancy of the lot by more than one family as a place of residence. If a house for some business, lawful and not covenanted against, should be erected in the restricted territory, and the upper story constructed for use as a residence, it hardly would be said that the building was more than one house. To our minds this case is clear. If the grantor desired to restrict the use of a single lot for dwelling purposes to a single family, apt words for that purpose could have been used. No intention of the kind can be drawn, with any confidence, from a covenant against more than one house. The upper and lower stories of a flat may be two dwellings, but they certainly are not two houses according to any use of the word “house” prevalent in this country; and in our judgment the best authorities support this view. All the cases are examined in Sanders v. Dixon, not with reference to the precise question now before us, it is true; but they are sufficiently digested therein to show their bearing on the question. The judgment is affirmed. All concur; Bland, P. J., in a separate opinion.