*1 KINGPIN INC. v. HILLCREST DEVELOPMENT. (2d)
126 W. N. 38,962. January 1964 No. Robins, Lyons, Davis & Bernard Rosenberg, and Kaplan, Elliot appellant.
Robert A. Dworsky, Richard Kyle, E. David C. Forsberg, and Briggs Morgan, & for respondent.
Frank Gallagher, T. C. Appeal from an order denying plaintiffs alternative motion for amended findings or for a new trial and from the judgment in an action declaratory judgment to determine the rights of the parties under two warranty deeds containing covenants restricting the use which certain commercial property may be put.
For purposes of brevity we shall refer to plaintiff, Kingpin Inc., as “Kingpin”; to defendant, Hillcrest Development, as “Hillcrest”; and lessees, to defendant’s Meats-Hillcrest and Lorraine’s Inc. Store, Milk Home, Meats” and “Lorraine.” Dairy “Capitol as Center, Hillcrest owns all block Ramsey Minnesota, County, except following property: *2 The south 80 feet 8 inches of the 4 north feet inches of block 4, Center, Hillcrest Ramsey Minnesota. County, tract,
This the use lawsuit, of which is the subject of this is owned by Kingpin and was purchased in by its in predecessors inter- est from the predecessor in interest of Hillcrest.
Hillcrest also owns other property which, in the area together with 4, block constitutes what is commonly referred as the Hillcrest Shop- ping Center.
The deeds pursuant to which these conveyances were made provid- ed in 2:
“Second: That the said parties part, the second their [Kingpin] of heirs, assigns grantees, and will not use premises, the said any part or thereof, any building nor erected said any purpose for other than period twenty-five market (25) food for of years hereof; the date that the of party part from first [Hillcrest] grant does hereby to the parties of the second part, their as- heirs, signs grantees, and the exclusive use and to establish and main- (4) tain Block four Hillcrest Center, a general food market period of (25) twenty-five from years hereof, the date but such exclu- use and sive right shall preclude the sale of sundries, drugs, can- dies, confections, ice-cream and kindred products, delicatessen, bak- goods ery or prepared meals or beverages by the party of the first part, successors, its assigns and grantees in the said Block Hillcrest Center. The right to sell the foregoing items by others in said Block 4 not, shall however, prevent the sale candies, of confections, ice-cream, delicatessen, bakery goods or beverages by parties of the second part long so as none of the same are consumed on the premises. It agreed understood and that the first party, its successors and assigns, shall, in all conveyances of property said Block Hillcrest Center, restrict the use thereof so that said property may not be used twenty- of market for period establishment of a
for the forth, set (25) as hereinbefore hereof, five date be to the second shall not liable assigns, first its successors party, rea- damages sustained heirs, grantees, their parties, assigns successors the first its grantees party, son of the failure of the (Italics assigns, agreement.” supplied.) such to fulfill restrictive contains portion above-quoted paragraphs The italicized It action. in this Kingpin covenants which seeks to have nullified covenants be- claims that it should be relieved these performing Meats has cause Lorraine and its leases to in. block 4 for breached covenant not to lease other location food market. Among the establishments included in block in addition Meats owned leased by Capitol one places Lorraine, Restaurant, Store, are an F. W. Woolworth Crest Howard Store, Department Store, Big Owens Coast to Coast Wheel Auto Sup- Store, ply adjacent block to block 4 to enterprises. In south, Snyder are Brothers’ busi- Drug places Store and other *3 ness. record, a
According erect- predecessor interest of ed a building 1950, on its property. April Since it has been used for of a general food market a operation selling wide variety of food items usually nonfood sold in so-called food markets in this area. 9, 1954, 1,200
On December Hillcrest leased about square feet of space floor in block 1664 Avenue, known as White Bear Wil- to liam Rasmussen and Lorraine H. S. Rasmussen for a 5 period of years commencing January lease The provided the premises were to be used for following purposes only:
“* * * candies, For the confections, sale of ice cream and kindred delicatessen, goods (as products, bakery hereinafter qualified) pre- meals, beverages, pared except the sale goods of bakery shall be limited to nationally or regionally advertised packaged bakery goods at price full retail and further that tenant shall a operate store, market or grocery or a bakery shop.” 1, 1957, Thereafter a new lease dated was into be- April entered years tween Hillcrest and said lessees for period and the date lease was canceled mutual consent of the previous A covenant almost to' one was con- parties. quoted identical above tained in new lessees’ there- lease. The interest in the lease was assigned after Home, Inc. At time Dairy the business on premises had been operated year for about a Frank G. Home, Beck as earlier, sublessee of Inc. As stated we shall Dairy refer to it as Lorraine.
The case was tried without With jury. respect to the business car- ried Lorraine, on the court found: 1, 1955, “Since January lessees and operators of said store [Lor- * * * carried, have
raine] stocked and sold milk and other dairy products, meats, prepared packaged goods bakery limited vari- ety and quantity other food and non-food products. average The inventory said business has been $5,000, approximately and the an- gross nual business has $150,000 been less than Said year. store has been open for business on Sundays and in evenings and a large * * * part of its business has been Sunday and evening business. The Court finds that the business which has been conducted said prem- ises since January 1955 has not constituted and does not constitute the food market within the meaning of paragraph * * Second *. The Court finds further that the plaintiff [Kingpin] predecessor in interest at all times had full knowledge of the nature and extent of the business being conducted on said objection made no thereto until prior shortly to the commencement of this action.”
The court also found that on or about August 1961, Hillcrest leased a period 2,500 approximately square feet of space store in block known as 1676 White Avenue, Bear to Capitol Meats. That lease provided that the premises should be used for following purposes only:
“* * * Operation of a retail meat market for the sale of food and products non-food generally and customarily sold by retail meat mar- area, in- Twin Cities
kets or meat in the departments supermarkets fish, meat meat sea food products, but not limited to cluding (whether fresh, pack- or all of the same be prepared, any poultry lard, frozen, bottled), season- shortening, aged, processed, canned or confections, but notwithstand- ings condiments, delicatessen and lease, or in this ing foregoing to the in the anything contrary paragraph Tenant for the or op- shall not use the leased establishment general of a market.” eration food
In a letter written after execution of the lease this clause shortly was amended give right Meats the “fresh fruits and to sell vegetables” subject following provision:
“* * * However, notwithstanding right to sell fresh fruits and vegetables clause, any specific items in the permitted purpose tenant shall not use the leased premises for establishment or opera- tion of a food market. It is further agreed understood of tenant to sell or all of the items listed in particular lease, clause purpose as amended shall be hereby, subject to the prohibition against the establishment or operation food market. ‘General food market’ as used in this letter and as used in said lease August 1961 shall meaning include con- struction, to, but not be limited a ‘general food market’ as used in Deed Warranty of October 1949 made by Hillcrest Develop- * * * ment to Melvin Roth and Ruth Co. M. Roth and the Warranty Deed of December Hillcrest Development Co. to Hill- * * Market, crest Super-Food Inc.
The court found that Capitol Meats has carried in stock and sold meats, including retail fresh and fish, frozen poultry and and some food and fresh products fruits and vegetables in season. It also found such did activity constitute operation market within of the deeds and that the businesses con- ducted Lorraine and Capitol Meats did not collectively constitute of a general food market within the meaning of these paragraphs; had not violated any of the terms of such *5 the re- granting existed basis for relief paragraphs; that there no quested by Kingpin. covenants,
While the condi- finding that Hillcrest had not violated tions, deeds, and restrictions 2 of by paragraph created and the imposed the court determined these were intended the also that covenants fact, be, parties to the deeds to and were not independent mutually dependent. this action was Meats begun,
When Lorraine were also However, made defendants. a few months before trial Kingpin through these parties their dismissal respective attorneys stipulated for them against prejudice. the action without Hillcrest did join not that dismissal or consent to it a made according to statement trial court its attorney.
At the beginning Kingpin’s the counsel in his opening state- ment outlined its position and in evidence the deeds placed covering the premises involved. He informed the court that all was Kingpin asking was that permit fit, the court it to use this as it property sees deeds, free from the restriction the on contained in theory use on that the longer restriction no enforceable by Hillcrest or its prede- cessors or successors in interest. Kingpin’s further that position was no other has an party in, on, interest or would have a right to be heard whether question the so-called mandatory requirement King- pin maintain and utilize the for 25 a as market is enforceable.
It was Hillcrest’s that the position Center was Shopping developed pursuant to plan; the restrictive covenant providing that use its may property for any purpose than food market for 25 years exists for the benefit all grantees center, in said shopping including Snyder Drug Brothers’ Store and W. Woolworth Company, which had granted F. been exclusive rights drug operate variety to store, respectively; that those grantees have to enforce the covenant against Kingpin are to this action necessary parties as they are entitled to rely assurance afforded restriction and cannot be deprived of their rights without their in court. The day deeds containing the restriction
prohibiting Kingpin using anything other than a property general food market were filed in 1950 and were of record when Snyder and Woolworth were made, leases restriction copy being incorporated into the Woolworth lease. Hillcrest maintains that it must be inferred that lessees agree- these entered into their lease ments in reliance upon existence restrictive covenants which Kingpin here attempts to have null and declared void.
Hillcrest also informed the trial court that its was position court was power without enter declaratory judgment adjudicat- ing that these restrictive covenants are longer no in effect. insisted It *6 that Capitol Meats and Lorraine are necessary parties for complete determination of that question that the other tenants in block 4 and in the entire shopping center who have acquired rights in re- liance the upon existence of these covenants are also necessary, probably indispensable, parties.
Prior to the taking of any at testimony the Hillcrest’s counsel moved to amend its answer to allege there were indispensable par- ties to the action who had not been made parties. Upon questioning court, he said that he was not insisting that such be parties brought in, but that if Kingpin wanted relief in action, this it should have them brought in.
Kingpin opposed motion, claiming that it would unjust be grant such an amendment at the moment of trial. The court denied Hillcrest’s motion, but stated that it did not intend to preclude Hill- crest from introducing relevant evidence respecting its obligations to- ward these parties under the contracts with them. The case then pro- ceeded trial without further discussion of the proposed amendment, and evidence was introduced by both parties with reference to whether or not Lorraine and Capitol Meats were general food markets so that Hillcrest had breached its covenant not to lease any other location in block 4 for a general food market by its leases to them.
It is our opinion under the record here that there was evidence from which the trial court could find—as it did—that neither Lorraine nor Capitol Meats operated a general food market; that the businesses con- ducted them did not collectively constitute a gen- of deeds; 2 of meaning market within the eral food of such paragraph. the terms any of Hillcrest had not violated reasonably aside if to be set a trial court are not findings The Kelly, In re Estate of all the evidence. sustained a consideration of are not to They L. R. 225 N. W. 67 A. Minn. 1268. weight against set clearly manifestly be aside unless or rule This in the evidence. support evidence or without reasonable any evidence documentary construction of written applies although the W. 237 N. is involved. Sommers v. Minn. City here, the trial Under the decision of the facts circumstances action and that the court that is not entitled to relief plaintiff matter law. This should' correct as a be dismissed with prejudice involving operations is confined to opinion questions present with in connection questions Lorraine Meats. future Any be determined facts. upon issues herein considered must their own Upon filed November petition rehearing, herein opinion 1963, is is substituted in thereof. foregoing place withdrawn A rehearing is denied.
Affirmed.
Otis, Justice (concurring specially).
I concur in the result.