HAZEL FAIRCHILD et al., Respondents, v. ROSS H. RAINES et al., Appellants.
L. A. No. 18735
In Bank
Aug. 31, 1944
24 Cal. 2d 818
Willis O. Tyler, Loren Miller, George E. Cryer and R. Al-ston Jones as Amici Curiae on behalf of Appellants.
McEachern & Ritchie for Respondents.
Hahn & Hahn and Lindstrom & Bartlett as Amici Curiae on behalf of Respondents.
SCHAUER, J. - Defendants have appealed from a judgment rendered by the court sitting without a jury, by which defendants Ross H. Raines and Helen Louise Raines (who are colored Americans) are “enjoined and restrained from using, occupying or residing prior to the 1st day of January, 1950, upon Lot No. 43 of the Palisades Tract in the [City of Pasadena,] County of Los Angeles, State of California,” and by which defendants Frank F. Winsell and Mary Winsell, his wife (who are Caucasians), are “enjoined and restrained from permitting said defendants [Raines], or any other person not of the Caucasian race, to use, occupy оr live upon said real property prior to the first day of January, 1950.”
The Palisades Tract is a subdivision in the city of Pasadena embracing a total of sixty-nine lots, of which thirty-one
Twenty-eight (possibly twenty-six) of the thirty-one lots fronting on Palisade Street, seven of the twelve fronting on Arroyo Boulevard, none of the twelve fronting on Forest Avenue, and none of the fourteen fronting on Washington Street are covered by the contract. In other words, at least thirty-four lots in the tract are not restricted as to racial occupation or use. Thesе thirty-four lots comprise three (possibly five) fronting on Palisade Street, five fronting on Arroyo Boulevard, twelve (all) fronting on Forest Avenue, and fourteen (all) fronting on Washington Street. As previously mentioned all of the lots fronting on Arroyo Boulevard, Forest Avenue, and Washington Street are contiguous at some point to a lot fronting on Palisade Street. The lot in
Plaintiffs are the owners of certain of the restricted lots in the tract. The complaint alleged and the court found the facts as to such ownership, as to the execution and recordation of the restriction agreement, and that as to lot 43 (the lot here involved) the agreement was executed by the then owners, from whom, by mesne conveyаnces, defendants Winsell acquired title prior to the commencement (on June 23, 1942) of this action; that “shortly prior to the commencement of this action, defendants . . . Winsel . . . , being the owners of lot 43 of said Palisades Tract, entered into an agreement with defendants . . . Raines, wherein and whereby said . . . [defendants] Winsell agreed . . . to sell and convey, and said defendants . . . Raines agreed . . . to purchase, said lot No. 43 . . . ; that by the terms and conditions of said agreement . . . [defendants] Winsell retain the legal title to said lot 43 until the full purchase price is paid; that by the terms and conditions of said agreement . . . [defendants] Raines were permitted to enter into possession of, and to use and occupy and live upon said lot No. 43; that said . . . [defendants] Raines did, prior to the commencement of this action, enter into possession of, and ever since have used and occupied and still do use, occupy and live upon said lot No. 43“; and that defendants Raines “are of the negro race and their occupation of lot 43 is ‘contrary to and in violation of’ the race restriction agreement
As a special defense (third affirmative) defendants allege “That at the time of making said agreement [in the year 1927] . . . there were no non-Cauccasians using or occupying property within several blocks of said Palisades Tract . . . That since the execution of said agreement and particularly within the last five years, non-Cauсasian occupancy of the premises and in the same tract and block [italics added] has expanded with increasing frequency so that at the present time a large porportion of the lots in the immediate vicinity and adjoining lots named in said agreement are now occupied by persons not of the Caucasian race but of the negro race and as a consequence thereof, said property is not now as desirable for occupancy by persons of the white or Caucasian race . . . ; that at the present time lots 18, 20, 29, 30, 31, 32, 33 and 34 [which front on Palisade Street] are adjoined by lots occupied by persons of the negro race; that defendants are informed and believe that other lots desсribed in . . . [the agreement] are adjoined by lots now occupied by persons who are non-Caucasians. . . . That as a result of said change in conditions, the enforcement of said agreement . . . would not benefit the plaintiffs but would irreparably injure the defendants and the plaintiffs in that the lots in said Palisades Tract described in . . . [the agreement] would not be occupied by persons of the white race and could not be occupied by persons who were non-Caucasians.”
In this connection defendants contend that the undisputed evidence introduced in support of the third affirmative defense demonstrates such change in the character of the surrounding neighborhood (including non-restricted lots in the same trаct) since the making of the race restriction agreement in 1927 as to bring this case as a matter of law within the oft-applied principle that “equity courts will not enforce restrictive covenants by injunction in a case where, by reason of a change in the character of the surrounding neighborhood, not resulting from a breach of the covenants, it would be oppressive and inequitable to give the restriction effect, as where the enforcement of the covenant would have no other result than to harass or injure the defendant, without benefiting the plaintiff” (Hurd v. Albert (1931), 214 Cal. 15, 23 [3 P.2d 545]; see Downs v. Kroeger (1927), 200 Cal. 743, 747 [254 P. 1101]; Friesen v. City of Glendale (1930), 209 Cal. 524, 529 [268 P. 1080]; Hess v. Country Club Park (1931), 213 Cal. 613, 620 [2 P.2d 782]; Marra v. Aetna Construction Co. (1940), 15 Cal.2d 375, 378 [101 P.2d 490]), and that therefore the court erred in granting plaintiffs injunctive relief. Particularly it is urged that the court erred in failing to make findings of fact resolving the issuеs raised by such affirmative defense. If such issues are material - and we conclude that they are - and if there was competent evidence tending to establish the affirmative of such issues, it was error not to determine them by appropriate findings.
It appears from the bill of exceptions that plaintiff Hazel Fairchild, one of the signers of the race restriction agreement, testified that at the time such agreement was made “no colored family lived within several blocks of the restricted area but at the present time there are negro families living on Del Monte street [immediately] north of Palisades [the street on which most of the lots included in the agreement front], on Forrest avenue [immediately] east, and Washington street [immediately] south of the restricted area; there are no colored persons living within the area covered by the . . . agreement except the Raines family [defendants] on lot 43; for the last several years a colored family has been living on lot 19 [which is within the tract and fronts on Palisade Street but is not included in the agreement], which adjoins lot 18 [included in the agreement] on the east.”
One H. P. Hammond, a real estate broker, testified on behalf of plaintiffs that he had maintained his office in Pasadena for “many years“; that “It has been my experience that invariably when a negro family moves into a neighborhood theretofore occupied by white people, the value of the surrоunding property drops fifty per cent. The fact that negro families have moved in and are living on Washington street on lots directly south of Palisades street would cause the same decrease in realty values.” The lots referred to on Washington Street are within the Palisades Tract. Mr. Hammond was the only witness on the subject of damages by reason of negro occupancy of premises in the neighborhood and it is to be noted that his testimony supports the conclusion that
Defendant Ross H. Raines testified that he and his “family are living in the house on lot 43 . . . ; that Del Monte is the name of the street directly north of Palisades street, and Forrest avenue is directly east, and negro and Mexican families live along those streets and on lots adjoining the lots restricted; that a negro family lives across the street from me down at the end of the block on lot 19; that there is no alley between the lots on Palisades street and Washington street and several families of negroes live along Washington street on lots that adjoin on the south, lots described in the race restriction agreement; that the neighborhood, except the lots described in the race restriction agreement, is occupied predominantly by negro families.”
Edna Griffin, a physician and surgeon, testified on defendants’ behalf that “I maintain my office in Pasadena; I am familiar with the northwest part of Pasadena and particularly that part wherein is located Palisades, Del Monte, Forrest and Washington streets; I have patients living on all those streets upon whom I make professional calls and those patients are negroes; I know of at least twelve families of negroes living on Washington street immediately south of Palisades street and west of Forrest; that part of Pasadena is occupied predominantly by negroes and is more suitable for negroes than for white people.”
One Sadie Wright, called as a witness by defendants, testified that “I have lived in Pasadena over forty years and have been familiar with the area wherein is located Palisades, Del Monte, Forrest and Washington streets since it was an orange grove; that over twenty years ago only white people lived in that area but at the present time, with the exception of the lots covered by the race restriction agreement, it is occupied principally by negroes and is more suitable for the occupancy of negroes than of white people.”
It is thus established by the testimony of one of plaintiffs themselves - the witness Hazel Fairchild - that since the making of the agreement the several restricted parcels have
On behalf of plaintiffs it is contended that the third affirmative defense and the above epitomized evidence supporting it are entirely immaterial; that under the circumstances related the plaintiffs’ right to injunctive relief is absolute and that there is no field for the exercise of judicial discretion as to the granting or withholding of such relief. We are unable to sustain plaintiffs in this contention.
It appears to us that sound judicial philosophy demands that a measure of discretion be permitted the trial court in the premises. If we were to uphold the view of the plaintiffs that covenants such аs those here involved must in any circumstances be enforced absolutely without regard to the number or proportion of lots in a tract subjected to the restrictions, without consideration of the occupancy and use of the adjoining property or of the length of time during which the imposed restrictions are to endure, we would ignore principles of equity which are fundamental. If the above related circumstances are legally immaterial under the facts of this case, then they would be immaterial if they showed that only two lots of a tract were restricted although all others were free and were occupied by colored Americans and even though only five months or five weeks instead of fivе years remained in the life of the restrictions. We are of the view that, subject to certain broad principles, each case of this character must be determined upon the facts peculiar to it.
Plaintiffs emphasize that there had been no change in “Negro or non-Caucasian occupancy” of the lots included in the agreement until the occupancy by defendants Rаines of lot 43. This is a material fact admitted by defendants but it is not necessarily controlling here. In an area as
The contention of plaintiffs that the proposition of law declared in the case of Downs v. Kroeger, supra (a restriction against other than residential use), has no application to a race restriction case cannot be sustained. (See Letteau v. Ellis (1932), 122 Cal.App. 584, 588 [10 P.2d 496].) It is, of course, true that race restriction agreements as to the use and occupancy of real property are normally recognized as valid (Los Angeles Investment Co. v. Gary (1919), 181 Cal. 680, 683-684 [186 P. 596, 9 A.L.R. 115]) and enforcible by injunction (Wayt v. Patee (1928), 205 Cal. 46, 49-50 [269 P. 660]). It is also true that where all, or perhaps substantially all, of the continguous lots of a tract of substantial extent are subject to race restrictions the courts should not fail to enforce the covenаnts as to the restricted area merely because surrounding property eventually is put to the use and occupation prohibited to the restricted area. (See Porter v. Johnson (1938), 232 Mo.App. 1150, 1158 [115 S.W.2d 529].) Obviously the precise purpose of the covenants is to avert changes in the restricted territory, not in the surrounding neighborhood, and they can have no legal efficacy beyond the area of the tract to which they are applicable. The mere fact that a change in the character of the use of neighboring property may make free use of restricted property more profitable does not warrant failure to enforce the restriction “if the original purpose of the covenant cаn still be realized.” (Marra v. Aetna Construction Co. (1940), supra, 15 Cal.2d 375, 378, a building restriction case.)
On behalf of plaintiffs emphasis has been plaсed on the case of Grady v. Garland (1937), (U.S.C.A., D.C.), 89 F.2d 817 [67 App.D.C. 73]. That case, however, not only fails to sustain the proposition that the right of plaintiffs to an injunction is absolute but rather tends to lend support to our view that an exercise of judicial discretion is involved. Plaintiffs there sought to quiet their title to six of a group of eight adjoining lots as against a covenant as to each of the eight lots that “said lot shall never be rented, leased, sold, transferred or conveyed unto any negro or colored person under a penalty of two thousand dollars.” Upon the pleading itself the complaint was dismissed. The court said (at p. 818): “While it is true that the averments of the bill are admitted by the motion to dismiss, we think the bill wholly fails to allege facts sufficient to justify the grаnting of the relief sought. The bill merely alleges, in effect, that by reason of the occupancy by colored persons of the territory immediately west of the property in question, plaintiffs’ property has been damaged and that it could not result in damage to the defendants to have the restriction removed. These are merely conclusions, not supported by any facts alleged in the bill, since there are no averments to the effect that the property has been rendered less valuable for rental purposes or for sale, or that the character of the environment would make it unfit or unprofitable for use by the enforcement of the restriction, or that a material change hаs occurred in the environment since plaintiffs acquired title to their respective properties - all of which are facts important to be considered in an action for the removal of the restriction.” The facts recited in the quoted statement distinguish that case from the one at bar. The facts enumerated as “important to
In the Grady case, supra, the court further said (at p. 819): “It might be that under such circumstances [where the matters complained of were forеign to the grounds on which the restriction was based] surrounding conditions would be sufficient to justify the removal of the restriction, but the restriction here is against the disposal of the property in question to colored people, and the complaint now is that colored people are living in the adjoining neighborhood [italics added], to the damage of these complainants. The restriction is for the protection of the property to which it applies, and is not affected by similar conditions which may arise in adjoining property. Castleman v. Avignone, 56 App.D.C. 253, 12 F.2d 326. The object of the restriction here was to prevent the invasion of the restricted property by colored people, not the invasion of property surrounding it.
“If the facts here аlleged were sufficient in equity to justify the setting aside of the covenant of restriction, all that would be necessary to defeat such a covenant would be the settlement of a few colored families in the immediate vicinity of the restricted areas. . . .
“A mere glance at the present situation demonstrates the protection which the restriction is to the defendants . . . It furnishes a complete barrier against the eastward movement of colored population into the restricted area - a dividing line.”
But in the case before us there is no “complete barrier.” Upon the evidence introduced it appears that not only the “surrounding neighborhood” but the very tract and block of which the restricted lots are a part has been invaded. As previously set out the witness Sadie Wright testified - and she was not disputed - in reference to the entire Palisades Tract “that over twenty years ago only white people lived in that area but at the present time, with the exception of the lots covered by the race restriction agreement, it is occupied principally by negroes and is more suitable for the occupancy of negroes than of white people.” Since the lots covered by the agreement are not a contiguous group
The only finding of the trial court directed to the issues raised by such special defense is that “As to the allegations of . . . [such defense], the court finds that since 1927 negro and Mexican occupancy of properties has increased near or in the vicinity of the lots described in said race restriction agreement, but that there has been no change in negro occupancy as to any of the lots described in said race restriction agreement, except the occupancy complained of in this action.” Such finding, in the light of the more specific allegations of the defense, and of the evidence tending to support those allegations, is not adequate and, hence, does not establish that plaintiffs are entitled to the injunctive relief granted.
Where a trial court makes findings upon all essential ultimate facts it is not error to fail to find upon evidential matters (see Williams v. McDowell (1939), 32 Cal.App.2d 49, 52 [89 P.2d 155]; Ryan v. San Diego Elec. Ry. Co. (1942), 52 Cal.App.2d 460, 464 [126 P.2d 401]) but this rule is not applicable in an equity suit where probative facts, which are matеrial to the exercise of sound judicial discretion in the premises, and which may be sufficient to constitute a defense against the relief sought, are pleaded and are supported by competent evidence. Since, under such circumstances, the probative facts as pleaded in themselves constitute material issues, the rule stated in James v. Haley (1931), 212 Cal. 142, 147 [297 P. 920], is controlling: “Ever since the adoption of the codes, it has been the rule that findings are required on all material issues raised by the pleadings and evidence, unless they are waived, and if the court renders judgment without making findings on all material issues, the case must be reversed.” (See also Krum v. Malloy (1943), 22 Cal.2d 132, 136 [137 P.2d 18].)
Gibson, C. J., Shenk, J., Curtis, J., Edmonds, J., and Cаrter, J., concurred.
TRAYNOR, J. - I concur in the judgment. In my opinion the findings of the trial court fail not only to provide an adequate basis for determining whether enforcement of the restriction in the light of changed conditions would impose great hardship upon the defendants with little or no benefit to the plaintiffs (Trustees of Columbia College v. Thacher, 87 N.Y. 311, 317), but to consider whether enforcement would be contrary to the public interest in the use of land in urban communities where people are concentrated in limited areas.
The public policy against restricting the free use of land finds expression in the rule that an instrument creating an equitable servitude must be strictly construed and any doubts resolved in favor of the free use of the land. (Werner v. Graham, 181 Cal. 174, 181 [183 P. 945]; Marra v. Aetna Construction Co., 15 Cal.2d 375, 378.) Again, building restrictions imposed by private agreement between landowners cannot stand in the way of the public interest. Thus in Friesen v. City of Glendale, 209 Cal. 524 [268 P. 1080], covenantors entitled to the restrictive use of land were denied compensation for its use as a public street on the ground that the interest under a restrictive covenant “is not a property right, but is a contractual right cognizable in equity as between the contracting parties, not binding on the sovereign contemplating a public use of the particular property taken.” (Id. at p. 531; see 19 Cal.L.Rev. 58). In Sackett v. Los Angeles City School Dist., 118 Cal.App. 254 [5 P.2d 23], the court held that a school district was not bound by a covenant restricting the use of lots to residential purposes, but was free to use the land for school playground purposes. The court stated, “the state and its various political subdivisions mаy not be bound by the terms of a private contract to which it was not a party (United States v. Certain Lands, 112 F. 622; Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461 [112 N.E. 505]; Friesen v. City of Glendale, supra). Public policy has been denominated a vague and uncertain guide at best (Miller & Lux v. Madera Canal etc. Co., 155 Cal. 59 [22 L.R.A. N.S. 391, 99 P. 502]), but instances arise that call for its application. The present action is one that does. It presents the situation of an agency of the state created for the sole purpose of providing adequate educational facilities for the youth of a certain limited area against whom there is sought to be invoked the aid of equity to enforce a restriction created by the provisions of a private contract to which the state was in nowise a party and by which it neither expressly nor by necessary implication consеnted to be bound. The state may not be thus hampered in carrying out a purpose in which it is so vitally interested.” (Id. at p. 258.) In Hurd v. Albert, 214 Cal. 15 [3 P.2d 545], a tract restricted to residential purposes became enclosed in a business district as the city of Los Angeles developed. The public interest in the development of the city rendered the agreement unenforceable, even though its beneficiaries retained some interest in its enforcement. In Letteau v. Ellis, 122 Cal.App. 584, 588 [10 P.2d 496], the court held that a restriction against occupancy of land by persons of negro descent was unenforceable because of changed conditions, stating: “We find it needless to follow appellants’ arguments on the technical rules and distinctions made between conditions, сovenants and mere restrictions . . . A principle of broad public policy has intervened to the extent that modern progress is deemed to necessitate a sacrifice to many former claimed individual rights. The only obstacle met has been the rule of property or as termed the disinclination to disturb vested property rights. To some extent this, too, has yielded in the sense that many rights formerly labeled as property rights by a process of academic relation are now considered merely personal and have been subjected to the common good.” (See also, Batchelor v. Hinkle, 210 N.Y. 243 [104 N.E. 629]; Forstmann v. Joray Holding Co. Inc., 244 N.Y. 22 [154 N.E. 652]; 14 Columb.L.Rev. 438; 3 Tiffany, Real Property (1939) 522.)
In the present case there is a public interest in the congestion of the limited residentiаl districts for colored people. That congestion is a consequence of residential segregation
The problem of race segregation cannot be solved by the courts alone, for it involves emotions and convictions too deeply imbedded in the social outlook of men to be uprooted overnight by judicial pronouncements. Nevertheless the problem must be confronted step by step, however provisional the solution, with regard both for the interests of minority groups and the general public interest. It must be recognized that the steady migration of southern negroes and the influx of negroes into urban communities in response to the increasing demands of industry for labor, together with race segregation (see Kennedy, The Negro Peasant Turns Cityward, ch. II, The Causes of Migrаtion, p. 41;
Negroes migrating into urban communities have found barriers at every turn. “Segregation . . . has kept the Negro-occupied sections of cities throughout the country fatally unwholesome places, a menace to the health, morals and general decency of cities, and ‘plague spots for race exploitation, friction and riots.‘” (Report of the Committee on Negro Housing of the President‘s Conference on Home Building and Home Ownership, pp. 45 and 46.) The choice lies bеtween the continuation of such conditions and the expansion of urban negro districts. Race restriction agreements, undertaking to do what the state cannot, must yield to the public interest in the sound development of the whole community. The courts, as the agencies of the state confronted with the problem of enforcing racial zoning by private agreements, must consider all of the factors that affect the public interest. It is pertinent to recall the words of Judge Cardozo in his concurring opinion in Adler v. Deegan, 251 N.Y. 467, 484 [167 N.E. 705, 711]: “The Multiple Dwelling Act is aimed at many evils, but most of all it is a measure to eradicate the slum. It seeks to bring about conditions whereby healthy children shall be born, and healthy men and women reared, in the dwellings of thе great metropolis. To have such men and women is not a city concern merely. It is the
In the present case a residential district populated by colored people now surrounds the restricted area on three sides. The question whether the restricted area shall stand as a barrier against expansiоn of the negro district cannot be determined entirely by findings with regard to property values and the interests of property owners. It is also necessary to determine whether maintenance of this barrier would deprive the colored population of any feasible access to additional housing and compress it within the inflexible boundaries of its present district at the risk of a congestion whose evils would inevitably burst the bounds of that district.
The trial court should therefore be directed to make findings as to the housing facilities available in the district occupied by the colored population and to determine whether there is a need for additional housing that would justify an expansion of the district by absorption of the restricted area.