*1 Highwаy McNeill. Ark. Comm. State 2d 425 5-3274 S. W. Opinion 1964. delivered June 14, 1964.] [Rehearing- September denied appellant. Langston, Woolsey Don Mark E. appellee. Jesson, for Barton <3 Hardin, appel- by the is a suit This J. George Smith, Rose enjoin State Troy wife, McNeill his lees, Highway constructing a cloverleaf from Commission highway home, McNeills’ interchange near the any a bond to secure first files unless Commission damages a result of the that the McNeills suffer presence contends that the The Commission construction.” legally any completed interchange will not cause plaintiffs. compensable damage chancellor, The granted injunction rejecting but with- defense, this damages any until determination the McNeills’ held question principal court. been decided has Estates, a residence Crestview McNeills own The bill of as- The Crestview Fort Smith. .an addition provides in the addition shall surances depart- purposes. highway only for residential used ’ appellees propose land. take ment does comprised acquiring a tract however, is, It ap- and that abuts the addition within eleven ’ interchange boundary When the pellees line. north completed will be a home behind the McNeills’ the area *2 quiet busy highway district. a residential instead of Expert will dimin- transition witnesses testified this plaintiffs’ property by $10,000 the ish the value of more. complaint their
In bottomed their the McNeills upon separate damages grounds: First, the value two presence by of their would be reduced glaring- highway, dust, attendant noise, its fumes, prop- lights, Secondly, their vibration. the value of department’s erty by highway would be reduced viola- bill tion restriction contained in residеntial rejected of assurances. The chancellor count the first complaint upheld but the second count. appeal There is no from the trial denial of court’s compensation upon the first in oral fact, count. argument candidly counsel the landowners conceded Despite that this count does not state a cause action. the fact that the merits of the first count are not now in begin by issue we think it best to our discussion consider- ing upon question count, for our decision the main really based the lack of in merit the first count.
It well settled in Arkansas that a landowner whose being- land is not taken is not entitled to damage kind same as that suffered public general, though in even inconvenience injury particular to the greater landowner in degree than Springs that to others. Hot R. R. v. Wil liamson, 45 Ark. aff’d 136 U. S. L. Ed.
10 Ct. 955;
S.
Little Rock & H. S.
R.
Newman,
W.
R. v.
compensable
It cannot be doubted that the first count in the complaint McNeills’ does not state a cause of action. merely They project assert that after the com- has been high-
pleted border a their back will line way privately lot. Such owned residential rather than nature that suffered an inconvenience is the same general highway built whenever of action in a residential district. cause There is resulting in the value the landowner for the diminution property. of his principal the fact issue: Does
We turn interchange proposed restrictive will violate appellant for the decrease liаble covenant render the prob property? of McNeills’ This the market value twenty jurisdictions, with the lem has arisen some *3 equally allowance of between about divided the decisions compensation in and are discussed denial. The cases its (3d Ed.), in a § 5.73, Eminent Domain Nichols, compensation is Mich. Comment, 53 L. Rev. 451. When in ordinarily diminution the measured it allowed City in Au Land v. U. S. Certain market value. gusta, Supp. Acres, v. 11.06 696; U. 220 F. S. Maine, D. C. Supp. Vuono, v. 852; Town Mo., D. 89 F. C. Stamford Detroit, 245; v. E. 143 Atl. Johnstone G. 359, Conn. 108 The American R. 245 Mich. N. W. 325. R., & M. proper compensation be that Institute indicates Law express any opinion instances, in but it refuses some damages. Restatement, the correct measure about Property, 566. §
Many denying compensation are the decisions Lynch, 2d in Anderson v. 188 Ga. S. E. discussed difficulty find- in The courts seem to have had some 85. saying refusing ing a sound basis for some award, plaintiff no in land that the has being others that does taken, restrictive covenant right, not confer and still others that power impaired of eminent domain not should private contract. compensation quarrel with an award of We have award would have been made Missouri, in the same as if, no restrictive covenant. Peters had been Buck if there as 232 W. A.L.R. 543. But, 288 Mo. S. ner, ap- considering we in in have seen first count ’ pellees Any complaint, that is not the law in Arkansas. solely action cause of asserted must McNeills rest upon the breach restriction. jurisdictions where, here, those as the de- restriction,
would be denied in absence approving cisions an award on the basis of the restriction opinion, wrong. demonstrably are, alone our We need adopt not, howevеr, the somewhat that dubious reasons given compensation. have been for the denial of We problem simple essentially think the one causation. plain argument too It seems almost at- reduction of the McNeills’ the value rather tributable breach of the restriction but the highway pass through to the fact that a is about to res- Suppose, example, idential addi- district. exactly developed had tion, Estates, Crestview been way actually developed, that it same resi- as dential without district, but such restriction interchange bill of If the assurances. had then been con- damage, pleadings structed the McNeills’ far as proof penny indicate, would have been same ifas the restriction had existed. Yet it would not have *4 compensáble. permit illogical been Thus it is a re- covery theory that the breach covenant of is the proximate injury. cause of the fallacy
Another to demonstrate illustration compensation: allowing Assume the existence decisions purely part area that residential is restricted part highway and in If unrestricted. a should be con- just structed within the restricted section the landowners highway compensation on of that side would receive although suffering while on the side, those other identical damage, remedy. would without a Under such a rule it is evident that whenever the owners of in an neighborhood throughway unrestricted learn that a is coming advantage in their direction it is to their to enter agreement imposing way, into an restrictions. by merely piece paper signing they may which de- pluck they causes valuable
stroy are able at will, thin air. from the aсtion property right in deny existence of
doWe covenant appellees. the restrictive be that It bought they it. But when gave to their land added value causing that is alone of the covenant the breach it is not being taken damage. instead tract, This same their city by the highway, might been condemned have for a park. have involved That too would aas site appellees’ but the value covenant, breach of actually property might there been enhanced. Thus have appellees’ present attributing logical for basis is damage without breach covenant. Even to the naked injury We occurred. their would still have the restriction permit bill assur- an irrelevant clause in the cannot of action. ances to create fictitious cause and dismissed. Reversed McFaddin, J., dissents. (dissеnting). I McFaddin, Associate Justice
Ed. F. vigorously it, I respectfully because, see dissent but ap- property right being taken from a valuable Highway pellees and this Court Commission the State appellees any refusing to allow the spite right, Art. and all this valuable such 2,,§ ‘‘ says: Constitution, 22 of our higher constitutional than before ap- private property shall not be taken, sanction; just damaged propriated com- without use, pensation therefor.” de-
In 1955 an exclusive residential addition was veloped Addi- in Fort Smith called “Crestview Estates lot bill under which each and the of assurances tion,” provisions, contained inter in the district sold these alia: *5 pur- except for residential be used lot shall
“1. No placed building altered, be or poses. erected, shall No any lot other than one detached permitted on remain to dwelling exceed and one half not to two single-family private garage; height; one other in and a and stories story accessory building in of not over one detached dwelling- height architecturally and harmonious structure. activity be carried
“7. No noxious or shall offensive upon any anything nor which on shall be done thereon lot, may annoyance be or become an or nuisance neighborhood.
“11. These covenants are to run with land and parties binding persons claiming shall be on all and all period twenty-five years under them for from the date these covenants are after which time recorded, said automatically covenants shall be extended for successive periods years signed unless an instrument majority of the then owners of the lots recorded, has been agreeing change part. said covenants whоle or by proceedings equity Enforcement shall be at law or against any person persons violating attempting any violate covenant either to restrain violation or to damages. recover
“12. shall These covenants restrictions incorporated every deemed to be deed owners ’’ any and all lots located in said addition. Every Crestview bound restrictive lot in was recited, covenants above one of was that lot purpose except would be for used residence. Naturally, restrictive covenant rendered the lots purposes. ap- most valuable residential In 1957 the purchased pellees, McNeill, Mr. and Mrs. and a half lot and erected thereon Crestview their in which home they Highway now live. 1962 the Arkansas State purchased, by warranty Commission eleven lots deed, in said Addition, Crestview and each lot bound except the restrictive covenant that no lot would be used a residence. pur- Highway State The Arkansas Commission highway for the deliberate use of a chased these lots purposes, deliberately intending not for residential thus *6 250 lot. Is the the covenant on each
to violate said restrictive superior agencies the law and State and its above private persons rights question this ! The answers Constitution quotation negative above
in in I have fairly Sovereign given. with its I think the deal should Sovereign subjects, decry attempt I to allow buy property private person claim and then like a superior private persons. rights Opinion “Does says issue: Majority this is interchange proposed will violate the that fact appellant liable for render the restrictive covenant property!” McNeill in market value of the decrease question unhesitatingly affirmative. I this answer A right. we have here is restrictive covenant such as Corp. recognized impliedly in Linder Such was Pyeatt, Am. Ark. 2d 619. See also S. W. appellees Jur. 194. have § “Covenants” So appel damaged. property right been That the that has general damages suffering from the different lees are crystal Any person own to be clear. seems to me every property right against ing a in had a lot Crestview general had no such other lot Crestview. The only by right: the restriction owned lot owners my distinguishes way thinking, Crestview; that, public. general lot owners Crestview from the Opinion Majority entirely disagree I So only says suffered that the lot owners Crestview public. Every general damages owner lot same knowing bought he had re- had a lot, in Crestview Suppose every against some- other lot. strictive covenant super- body bought eleven in Crestview had had the McNeills market. Would this Court hold Why Highway damages! should the State acquiring property by greater Commission, have deed, acquired by right than a citizen deed! would have who respectfully I dissent. point; might but the dissent at this
I close this opinion 30-page case, wrote a this learned Chancellor copy I now tremendous research that and it shows such question studying extensively anyone from it so in the future will have the benefit of the Chancellor’s opinion: *7 THE
COPIED FROM OPINION CHANCELLOR’S plaintiffs defendants are that to the claim of As violating in the Bill of Assur- covenants the restrictive property, compensable damage their of ance to the Rapides Parish cite School defendants Gremillion split which Board, 134 2d in court reviewed So. authority. of The review reflected result of this Jersey, New North York, Connecticut, States of New Michigan, Tennessee, Carolina, Massachusetts, Virginia, Missouri, respective through Su- their Wisconsin, preme in Courts, covenant, were accord that a restrictive right property such as one a case, ivas destroyed damage resulting which when compensable. The California, Courts of the of States Georgia, Colorado, District of Columbia, Florida, Ohio, Virginia, Texas, West and Louisiana hold otherwise. person majority The courts have held that a compen- favor a covenant whose restrictive exists has pre- proceeding in a condemnation sable interest which compliance with vents the restrictions. In Nichols on Eminent Domain, Sec. it stated: is 5.J4 majority
“The view holds that such a restriction equitable often characterized as an servitude, constitutes property in the constitutional com- sense and must be pensated equita- if taken. Such restrictions constitute ble easements the land restricted, and when land such taken for a use that will violate the restrictions, there ais of the the owners of land for the benefit of im- were restrictions posed. The owners of such cannot maintain proceedings damages against original owner or against they enforce the restrictions but condemnor, compensation are entitled award of for the destruc- tion of their easements.
“If of the existence easement diminished subject ordinarily value of the land thereto, as is when case the easement of such a character as way, easement of the holder of the might well be deducted from the sum awarded to owner mutual of the servient tenement. In the case building re- restrictions, however, the existence strictions often enhances rather the value than decreases might and the land, owner of the land taken conse- quently object receiving well than event less place fair market value real his estate.” footing, majority stronger much legal cases stand on a viewpoint. logical
both from a as well as leading early field in this cases One of the *8 Ry. 222 N. M. W. of v. Detroit H. & Johnstone C. Michigan (1928). Supreme that held of There the Court whose subdivision owners of property within restricted actually en
was not taken were nevertheless compensation upon portion the titled to of purposes. that held subdivision for railroad The Court building of restrictions for destruction through rail acquiring the land subdivision by the land diminution in valuе of road measured was In the court discussed the various not taken. Johnstone prior point including time those on to that cases where condemnation was which held that cases subject body that the to use Michigan building rejecting In restrictions. this view court stated:' application approve in these made cannot
“We conveyance public policy. usual The of of cases or doctrine contemplates by affecting real its contract estate persons persons and all other to the exclusion reasoning public. right The its value. of use lies purpose pursued, by reading out of the exclusive exception illegal, an would read into it instrument as public point, to the state In direct it would enable use. negative light, destroy air, a common-law easement of cоmpensation. prospect By analogy, it would and without deny way, payment for the destruction of an easement of unexpired rental increased due at- term, values pursued if uses, conclusion, tractive leases and, its injury part to the residue of a freehold when is taken. agree All the authorities com- these are interests pensable. applied
“Especially to residence restrictions is unacceptable. syllogism residence Restrictions for proper purposes, clearly instruments, if established public policy. are have favored definite Courts by specific long vigorously man- enforced them * ** date. gov- anything system “Nor there in our laws, spirit or the of our ernment, institutions which curtails genius creating enhancing of a citizen in values way, improve- by physical his lawful psychological ment, inducement, or otherwise. contract, obligation recognize power His domain of eminent possibility no wise restricts his its exercise profit. may power legitimate He view the entirety, requisite just its constitutional comitant compensation, and order within law with his affairs pay assurance if the will that, state takes his it him the value what it takes, whatever value Anything consist, it so is measured the market. less is confiscation. *9 property
“It is therefore held that of in a owners plan, general property in which, subdivision under a the specified is restricted to and in which restric- uses, the subsisting, against tions are valid, and enforceable the private lands in the hands of owners, are to com- entitled pensation upon part the of of such subdivision for use in violation of such restrictions; that, aside damages from nominal for destruction of easement, the by is measured the actual diminution premises in value of the of such owner result of as a property put, the use to that, which taken is determining by way effect benefit diminution, such of by way injury, as well as of such be taken use is to into account.” (Mo. Judge, 232 v. S. W. Buckner,
In Peters 1921) grantee ain subdi- held of a lot the court that a contain a covenant to all which vision, the deeds the lots buildings against than residen- the erection of other every purposes, in and to lot an easement tial has by covenant also covered which is subdivision appurtenant en- for the lot his that this easement held that The court further covenant. forcement of such a lot a subdivision owner of easement of the cannot be taken for lot each compensation. the Su- In the Peters case use without рreme Court of Missouri stated: what but the erection can be doubt
“There
is,
case
on the
mentioned in this
the schoolhouse
lots
spirit,
men-
covenants of restrictions
violation
Park Addition
tioned in the deeds of the Meadow
purchasers
City
therein.
Kansas
of lots
various
binding upon
While
the state
these restrictions are
authority
acting
or the school
board,
under
state’s
yet,
proceedings,
condemnation
restric-
such
if such
addition,
it
value to all the lots
tions add actual
protected
then,
state;
the courts
be
should
deprive
board
owners
when the
undertakes
school
proceed-
values,
those
condemnation
of those lots of
required
pay
ings,
same,
it
for the
as
should
other
it
from the
all
values
takes
owners
proceedings,
before
too,
the addition
such
and that,
damaged,
in-
can be taken or
before
their
dicated.”
City Raleigh
(N.
C.
Edwards,
1952),
proceeding by
City against
involved a
the de-
fendant and others to condemn
certain
within
City as the
for the
water
site
erection of an elevated
storage
adjoining
alleg-
An
tank.
landowner intervened
tank,
ing
proposed
erection of
water
would
impair
property by depriving him of
of his
the value
*10
existing
restricting the
covenants
benefits
private
property sought
to be condemned
dwel-
ling purposes only.
Supreme
The North
Court
Carolina
held that
the restrictive covenants contained in the
deeds
the lots in the subdivision wherein the water
prop-
tank was to be erected vested in the
a
interveners
erty right
sought
in the land
to be
condemned
paid
question
must
for. This was the first time this
presented
had been
to a North Carolina court and the
underlying principles
court discussed the
and basic de-
following language:
cisions
this field in the
question
“The
whether the restrictive covenants
contained in the
deeds
the lots
the subdivision vested
property right
sought
a
interveners
in the land
paid
precise
to be condemned which must be
for. This
question
presented
does not seem to have been
hereto-
fore to this Court for determination, and the decisions
jurisdictions
from
opinion.
other
contrariety
reflect a
weight
authority
“However, the decided
in other
jurisdictions supports
proposition
such restric
being
equitable
tion,
in the nature of an
land and must be
servitude, is an
paid
for when taken. The
theory
impose
is that these
negative
restrictions
ease
ments on the
appendant
land restricted in favor of and
rest
the land
the restricted area, аnd when
particular parcel
appropriated
thereof is
appropriation
will
use that
violate the restrictions, such
taking
amounts
damaging
constitutional sense to a
of other landowners for whose benefit the
imposed.
restrictions are
18 Am. Jur., Eminent Domain,
p.
Sec.
788. Annotations: 17 A.L.R. 554; 67 A.L.R.
385;
“It
is true that such other landowners
against
they
enforce the restrictions
the condemnor, but
are
nonetheless entitled to
award of
through
power
where,
the exercise of the
of eminent do
damaging
there
main,
rights
of such
* *
p.
*. 18 A. Jur., Eminent Domain,
Sec.
788. See
Buckner,
Peters v.
‘‘ majority squarely hand, the other view On rests negative theory easement created (18 Am. building in land is vested restriction 788), p. Court and this Sec. Domain, Eminent Jur., nega principle unvаryingly that a adhered has in land. kind a vested interest tive McKinney easement *12 107; E. 2d 231 N. S. Deneen, 540, v. C. Telephone Telegraph & Bell Hildebrand v. Southern City v. Charlotte 252; 219 N. 14 S. E. 2d 402, C. (here con- E. it was Heath, 226 N. 40 S. 2d 750, C. parties negative ease ceded all concerned that the property rights to be condemned ments involved were paid for); 18 E. Glenn, and v. 220 N. C. S. 620, Turner 697; 2d E. 2d 197; Robinson, Davis v. 189 N. C. S. 589, 127 2d Brown, East v. 234 N. 67 S. E. 517, Side Builders C. C. Education, 489. See v. 210 N. also Glenn Board of supra; 525, 187S. E. Mordecai’s 781; Greesboro, Hiatt v. Thompson p. Law Real Lectures, Edition, 557; 2d on through Estate, Permanent Edition, 7, Vol. Sec. Running 3631; Sec. with Clark, and Interests Covenants p. seq. Land, 174 et supra, page 598, N. at Robinson,
“In v. 189 C. Davis opinion by page is Yarser, J. it. 702, 127 S. E. at nega- affirmative or said: ‘Easements are classified as “Negative the owner tive. where easements are those prohibited something doing from servient estate is * * * otherwise lawful always “An easement his estate.” * * * implies an land. It real interest is property, building grant.” re- A it is created negative striction a easement.’ supra, page 625, Glenn, 220 N. C. at
“In Turner speaking page Barnhill, J., E. with 18 S. 2d at imposed by re- ‘The it is said: servitude Court, species incorporeal right. It covenants strictive making estate from restrains the owner of the servient property. land, of his It certain use conveyance within the statute of frauds.’ of which is negative holding ease- we do that these as
“Thus, property rights, force of it follows are ments vested taking simple justice logic that for the natural compensation paid property just as must such taking any type property, the case of the of' other privity and the lack of contractual the owners between and the condemnor inis sense determinative factor.
“Treating allegations of the further defense true, as is on Dairies, the rule Hall v. demurrer, Coble 234 N. C. 67 E. we inter- S. 2d conclude have a veners vested in the re- of value imposed sought strictions on the to be condemned proposed and that the use of the amounts damaging constituional sense to a of this property right, for which the are entitled interveners they may commensurate loss sustain. Art. 1, Sec. 17 of the Constitution of North Carolina; Fifth Amendment of the Constitution United States.” *13 Meagher Appalachian
In v. Electric Power (1953), Supreme Virginia S. E. 2d 461 the Court of Appeals question faced this the time. a for first This was involving high suit voltage the erection of transmission binding tower lines in violation of restrictive covenants plaintiff of lands and the defendant. There applicable the court held that the restrictive covenant property right to all of the subdivision was a imposed, in favor of those for benefit it whose was and corporation property invading that a service such right public necessity compensate because of must those imposed. Meagher for whose benefit covenant was question by using following the court decided this language: question
“The next cove is whether the restrictive applicable in nants to all of the lots the subdivisions are property they in favor of those whose benefit imposed. precise question were not heretofore has presented been to this court and the decisions from other jurisdictions City are in conflict. In the recent case of Raleigh Edwards, 235 N. C. E. 71 S. 2d subject. 397, there is a clear and discussion concise City Raleigh pro There the instituted condemnation acquire ceedings property ain for the subdivision in owners Several of a water tower. erection claim asserted the and intervened subdivision improvement proposed public violation restricting sub- covenants use purposes only,’ ‘private dwelling would and division property rights deprive of substantial them of vested com- entitle them covenants, value created pensation such authori- of the therefor. After careful review expressed agreement with that the court thus its ties view: *
* *‘ juris authority weight in other the decided proposition supports restriction, such dictions being equitable servitude, of an in the nature paid when taken. The must land and impose negative theory ease is that these restrictions appendant in favor of and on the land ments restricted awhen area, to particular parcel rest of the land the restricted appropriated thereof is appropriation that will such restrictions, violate the damag taking or amounts a constitutional sense to ing bene for whose other landowners imposed. Jur., fit the Am. Eminent restrictions are p. 554; R. Sec. A. L. Domain, 67 A. 788; Annotations: 385; L. R. 122 A. L. R. 1464. follow the court declined to
“The North Carolina theory minority grounded on said, view it ‘is which, rights being enforce- contractual restrictions, that these *14 con-, parties privy, only equity in do not able in between E. 2d at stitute an in at all.’ 71 S. page 401. majority taking view
“Among authorities other City 858, 24 585, N. E. 151 Mass. Boston, v. Ladd are, of J.); (opinion by Rep. Am. Riverbank Holmes, 481 21 St. E. Improvement 228 117 N. Chadwick, 242, Mass. v. Co. Co., Elec. Detroit R. 1918B, 55; Johnstone v. L. R. A. 244, v. A. R. 373; 222 67 L. Peters 325, Mich. N. W. 65, 245 543; R.L. Buckner, Flynn 1024, Mo. 232 W. 17 A. 618, 288 S. E. R. 218 Y. 112 N. York, 140, etc. N. v. New 588. Law 1918B, also, Ann. See 913, of Eminent Cas. Nichols’ pp. 81-84. 5.73, 3d Sec. Domain, Ed., 12, Vol. 260 leading minority presenting
“A is view ease Lynch, A. R. 154, Anderson v. 188 3 E. 2d L. 85, 122 Ga. S. principal upon by where 1456, relied authorities defendant here are collected. previous clearly
“Our that have indicated decisions property. right restrictive covenants a valuable create Spilling v. 68 E. Hutcheson, 179, 250, 111 Va. S. approved Pomeroy’s Equity we 2 Jur., statement 3d Ed. Sec. that ‘restrictive covenants deeds * * * limiting specific manner, use of land in a ** * peculiar prescribing equitable use, create servi on tudes the land.’ Taylor,
“In Cheatham v. E. 138 S. Va. right person 545, we said ‘that the a third protection (restrictive) equitable covenant an ’ right by whatever named called. Springer Gaddy,
“In 2 E. 2d 533, 541, Va. S. approved holding 355, 358, we under that the ‘ equitable negative such a restrictive covenant ease- ’ may designation, ment. But we whatever be its correct opinion аre of that such restrictive covenants created public utility may ‘interest or estate’ which a land, acquire by subject eminent domain, Code, 25-8, Sec. but protection Section of the Constitution may damaged it not ‘be taken or uses, without ’ just compensation. argued
“It that such in- restrictions cannot be against corporation voked service clothed under power the laws of the State with the of eminent domain, public necessity require prop- because taking erty despite in such an area such an- restrictions. The necessity may is, swer justify taking, ‘Public but justify taking compensation.’ cannot City without Raleigh supra, v. Edwards, page E.S. 2d at 399. opinion, then, “We are of that the acts the de- fendant are a breach the covenants and restrictions binding on subdivisions, its lands these and constitute property rights damаging for which com- *15 paid. pensation must be
261 prevent proper remedy “Injunction private property damaging just compensation by one who Virginia invested without power Springs Hot Co. eminent domain. v. Lowman, v. 126 E. Nichols 424, 427, 326; Va. 101 S. Virginia 405, 413-415, Central Power 143 Ca. E. Domain,
S. A. L. R. Eminent 727; S., C. J. p. 125.” Sec. question involving recent this the most cases
One of Kilpatrick, Shelbyville City W. 2d 322 S. that of brought 1959). City (Tena. a suit There, city declaratory judgment water that it could erect paying com- in a without tower pensation residential subdivision to other lot owners the subdivision. plat
court held provided that where the recorded subdivision all lots' the addition were restricted purposes only, acquired City residential one purpose erecting thereon, a water tower proposed City by that the violation of the restriction ‘ ’ taking by City would be the of the of the City owners the other lots, so that would be required by compensation. just pay the Constitution to Supreme following The Tennessee lan- Court used the Kilpatrick guage in the case:
‘‘ question been de- The exact seems never to have by jurisdiction. Chancellor, cided in observed this As jurisdictions in irreconcilable the decisions of other ‘are ’ conflict. opposite by diametrically “In view of the views eminent amiss, on each will not be side, authorities it’ justification position at least in taken briefly Court, to state attributed each reasons respective for the reached. conclusions appears “A variance the numerous decisions just given what technical name should be this restric- however, tive covenant. All the and textwriters, decisions appear reciprocal agree conclusion servitude owеd each lot to all the others the sub- *16 262 equitable easement this easement; is an
division say) exception'(so sover- of tbe with tbe some continues, respective eign, dominant and servient into whosoever the pass. may successively estates upon agree “The seem to authorities likewise proposition violation that, as between individuals, enjoined right by may of the created be this easement equity by or such estate, dominant the owner compensation violation, for its owner be entitled to allow the owner to all it would be unconscionable because impunity con- his to violate with the servient estate equitable creating tract easement. this question whether the “But when it comes to taking sovereign in the violation of restriction this voluntary (or by of the conveyance lot eminent domain servient public purpose say it) to for a those who meaning that it not within the requirement place constitutional mentioned upon ground not one conclusion that the easement is permit occupation physical which ‘would or use A. R. 122 L. tract, lot owners thereof’ the other passage right easement, nor it a ‘true as subject rights light’ land and air, which are App. C. condemnation other interests in land.’ 63 D. as R. 389. Hence for each 842, 844, 69 F. 2d A. L. say, they taken. reason, land, no interest whom “When it fact that from comes to the those sovereign acquires ágreed lot have servient every the owner of other in that lot subdivision question, jurisdictions, easement the above some upon say impose that an them, individual cannot sovereign damage compensating ‘the burden of him for resulting directly from not does parties 17 A. L. R. and that the invade his land.’ may private ‘in contract create for not themselves in land not known to our law and entitle them estate thus before.’ where no such existed 122 L. R. 1465. A. say go
“Others that side far that since so sovereign cannot be the land restricted its use of use, short at it follows nuisance, least, parties contracting that an intention between the sovereign implied. to include the will Ga.
S. E. 2d A. 85, 122 L. R. 1462. *17 contrary in a
“The view is that when all the lots subject subdivision are to easement, this restrictive public one is taken for a lots use, owners of other imposed for whose entitled benefit the restriction is are compensation, damaged, to if an because such easement an constitutes posed. interest in the land which im- it is Michigan “The Detroit, case of Johnstone v. Grand Have, etc., 245 Mich. N. W. A. L. R. 325, 327, 67 taking this last stated view of matter, dis question quite response cussеs the to some detail. public argument against apply policy that it is taking sovereign such restrictive easements public pointed of land for a use the Court out that police power only limiting is restrictive, the owner’s use public safety, of depriving etc. ‘but never extends ’ him of it for benefit. recognized building “The Court the fact that restric- tions ‘did not constitute easement known to the common law.’ But then called attention to the fact that the ‘ease- light, property abutting of ments air and access aon public street is not a common law easement, but im- its pairment prop- taking use in the street' ais of ’ erty.
“ supra, Johnstone v. Detroit, etc., its asserts that holding supported weight ‘is authority.’ following report first annotation of the after case, calling supra, attention annotation in A. L. R., makes this statеment: ‘The few cases decided since uphold earlier annotation the rule that taking must be made where the under emi- building nent domain violates restrictions on the land ’ adjacent thereto. compensa holding reasoning the cases “The under where tion must be made placed building restrictions eminent domain violates every in the subdi other lot the benefit of thereon for opinion consistent more Court, is, vision respective Each of the with the realities of the situation. respective restrictive entered into this owners something regarded agreement it as because each case her own lot. Our added to the value of his or Ridley 2d Tenn. 47 S. W. Haiman, 239, 258, recognizes a restriction it to be a fact that such ‘ ’ meaning right itself, deed an interest created lot. the servient spirit
“Certainly eminent of our within the it is not by the deed interest created domain law that such compensation, if away owner without be taken from its spirit being damaged. within the Not that owner is *18 required by ought the held, it not to be unless law, so nothing in letter letter of law. Court finds This compensation forbidding to law our eminent domain any- Nor is there the owner under circumstances. such exhibiting thing an intention in Article 21, Section right taken be that this sovereign the servient lot compensation. paying just without that the owner to hold accurate “It does not seem lot a certain right of the servient to the use to restrict lot not a of the dominant is for the benefit use speak- broadly only right, right lot.' The that servient any in land ing, real has is owner of estate that right that would to follow So, it. it seem parcel ownership given right a to restrict the use of property right extent, to that is, land а certain use deprived he should thereof, when which, in that lot, v. compensated. better stated Johnstone Or, be right supra, restrict the use Detroit, etc. —‘as ownership, it would seem an invasion real estate is right or interest logical it done virtue that is ’’ ’ real estate. such Company States, v. United In Adaman Water Mutual 1960), (ninth Federal Court F. 2d 842 Circuit, language: following problem by using the discussed this generally “Presently, covenant a restrictive Chapman property right federal law. deemed a under Sheridan-Wyoming 70 S. Ct. 338U. S. Coal treated simi- 94 L. think Ed. 393. We it should purpose larly in an eminent domain contest where and other of the distinction rights interests between directly connected is to differentiate losses comparatively remote. more from the land taken losses duty, any right benefit or It follows from this with either which transferred as one burden, movеs an interest in it be deemed the land or estate must upon compensable in that land and condemnation of rights are fee. Because the and duties transfer these subject principles legal which different from those unique, govern passing of other direct interests, connection with the land connection is established. This justifies Accordingly, the distinction mentioned above. we think under the Fifth Amendment a restrictive imposing duty covenant which with the land runs compensable taken constitutes a interest.
‘‘ impermissible put argument that an burden is power cov- of eminent domain a restrictive compen- Why party enant untenable. should receive for an the value sation easement enhances yet be denied of his *19 similarly
right obtained
a restrictive covenant which
holding?
to the value of
Both
are
adds
his
interests
directly connected to the land
are unable
find
and we
justify
them
between
which will
dissimilar
distinction
condemning authority.”
treatment at the
hands
quotations
it is
from the above cited cases
In the
principal
factors involved is
noted that one of
whether or not
restrictive covenants
determination of
actually
the land
contractual in nature
run with
or are
parties.
the instant case there would
between
argument
room for
be little
but that the restric-
seem
tive covenants run with
Bill
the land.
Indeed,
creating
specifically
Assurance
the restrictive covenants
provides
they
are to run with
are
the land and
incorporated
every
deemed to be
deed
the owners
and all lots located in the addition.
it should
Also,
be noted that in Arkansas the rule
a covenant
is that
which is beneficial or essential to the
of the land
conveyed
expressly
binding
and which is
made
assigns
grantor,
heirs,
or successors of the
runs
May,
the land. Nor
1951).
(Eighth
din v.
It aiid of this is, therefore, Bill Court the restrictive of Assur- covenants property rights; ance and extended into the deeds are acquisition that the of the eleven lots and the construc- project tion of thereon amounts damaging a constitutional to a sense and this right, specifically the Court and a direct finds holds that as project result construction in the Crest- view Estates Subdivision mate- defendants has rially substantially damaged diminished plaintiffs’ prop- property; market value of and that the erty damaged compensable so taken and are under law of Eminent Domain and the Constitution State of Arkansas.