66 A.2d 590 | Conn. | 1949
In this action for a declaratory judgment, the plaintiff sought to have determined the validity and enforceability of a provision in a deed of 204 acres of land wherein the grantee for himself, his heirs and assigns agreed that no buildings should ever be erected on a part comprising about 8 acres. The *537 trial court held that the restriction was valid and enforceable, and the plaintiff has appealed.
So far as necessary for the determination of the issue before us, the facts found may be briefly stated: In 1921, John Doyle owned a tract of land comprising about 212 acres, and in that year he sold to the plaintiff's predecessor in title 204 acres which included the 8 acres subject to the restriction. The part retained by Doyle was across a dirt road from the eight-acre tract and had a house upon it. In 1930 the defendant purchased this property, which she has since owned. She had previously considered the purchase of another property but decided against it because of the likelihood that the section where it was located would be developed and become suburban in character. She knew of the restriction and it was one of the causes which induced her to pay more for the Doyle land than she had first offered. There is an unusually extensive and picturesque view' across the restricted tract from the defendant's property, and the restriction is of great value to her property. Doyle had used the eight-acre tract for farming; since he sold it, corn, hay and other crops have been raised on it; and it is particularly adapted for use as an orchard. The surrounding country is rural in its characteristics, sparsely settled, and consists in the main of woodland and farms. In 1947 the plaintiff purchased 51 of the 204 acres sold by Doyle in 1921, including a farmhouse, for $12,000. The restricted tract is part of the land bought by the plaintiff. He had actual knowledge of the restriction. He is in the business of developing land for residential purposes and proposes to use the land he bought in that way. Such use of the restricted tract would result in serious damage to the defendant by interfering with the view from her property and disturbing her privacy and quiet. The plaintiff has received an offer of $5000 *538 for about half of the restricted tract and $9000 for the whole of it, if the restriction is removed. Since Doyle's conveyance to plaintiff's predecessor in title, there have been no material changes in circumstances or conditions in the neighborhood.
The contention of the plaintiff is that there should be the same limitation as to the permissible duration of the restriction against building on the eight-acre tract as is applied to perpetuities, covenants to reconvey, restraints on alienation and trusts for accumulation, none of which may extend beyond a life or lives in being and twenty-one years thereafter, with, if necessary, an extension of nine months to cover the period of gestation, or, where not measured by a life or lives, beyond twenty-one years. Hill v. Birmingham,
The reason the rule for which the plaintiff contends cannot apply to such a restriction as that before us lies in the nature of the right Doyle reserved under his deed. The provision against the erection of buildings created a servitude upon the eight-acre tract in the nature of an easement inuring to the benefit of the land he retained. Bickell v. Moraio,
That does not, of course, mean that there may not be circumstances which would render such a restriction invalid. Its provisions may be such that it is unenforceable because it contravenes some constitutional or statutory provision. See Shelley v. Kraemer,
The fact that the plaintiff's property would be of more value if the restriction were removed is of no consequence. Evans v. Foss,
In passing, we note the citation by the plaintiff of Dick v. Sears-Roebuck Co.,
The judgment of the Superior Court that the restriction is valid and enforceable must stand.
There is no error.
In this opinion the other judges concurred.