Long v. Branham
156 S.E.2d 235
N.C.
1967
Check Treatment
*268 Sharp, J.

The question posed is this: Do the restrictions which provide that no lot in Timbercrest Subdivision “shall be used except for residential purposes” prevent an owner from constructing across a part of his lot within the subdivision a roadway connecting a street in Timbercrest with one in the adjoining subdivision of Oak Hill, which is protected by restrictions substantially similar to those of Timbercrest? “Whether or not the maintenance, use, or grant of a right-of-way over restricted property is a violation of the restriction depends largely upon the language of the restriction, the objects sought to be obtained, and the conditions and circumstances surrounding the premises involved.” 20 Am. Jur. 2d, Covenants, Conditions and Restrictions § 232 (1965).

In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions. Callaham v. Arenson, 239 N.C. 619, 80 S.E. 2d 619. The rules of construction are fully set out in Annot., Construction and application of covenant restricting use of property to “residential” or “residential purposes,” 175 A.L.R. 1191, 1193 (1948), and they are succinctly stated in 20 Am. Jur., Id. § 187 as follows:

“Covenants and agreements restricting the free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction to affect lands not specifically described, or to grant rights to persons in whose favor it is not clearly shown such restrictions are to apply. Doubt will be resolved in favor of the unrestricted use of property, so that where the language of a restrictive covenant is capable of two constructions, the one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of the land.
“Such construction in favor of the unrestricted use, however, must be reasonable. The strict rule of construction as to restrictions should not be applied in such a way as to defeat the plain and obvious purposes of a restriction.”

Where the meaning of restrictive covenants is doubtful “the surrounding circumstances existing at the time of the creation of the restriction are taken into consideration in determining the intention.” Annot., Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant, 25 A.L.R. 2d. 904, 905 (1952).

*269 It is quite clear that the use or grant of a right-of-way across property restricted to residential use to reach property used for business, commercial, or other forbidden enterprises violates the restrictive covenants. Restricted property cannot be made to serve a forbidden use even though the enterprise is situated on adjacent or restricted land. Starmount Co. v. Memorial Park, 233 N.C. 613, 65 S.E. 2d 134; Annot., 25 A.L.R. 2d 904, 911 (1952); 20 Am. Jur. 2d Id. § 232; McInerney v. Sturgis, 37 Misc. 2d 302, 234 N.Y.S. 2d 965; Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475, 478; Wallace v. Clifton Land Co., 92 Ohio St. 349, 110 N.E. 940. In Starmount Co. v. Memorial Park, supra, this Court upheld an injunction against the use of a driveway across restricted property to a commercial cemetery. The proposed use, we said, would be tantamount to dedicating the lot to a prohibited business, or commercial, use.

As pointed out in Annot., Grant of right of way over restricted property as a violation of restriction, 39 A.L.R. 1083 (1925), differences in the wording of restrictions and in the conditions and circumstances surrounding the premises involved have caused courts to reach varying conclusions upon the question presented here.

“In general, it may be said that if the granting of the right of way seems to be inconsistent with the intention of the parties in creating or agreeing to the restriction and with the result sought to be accomplished thereby, the courts incline to hold such a grant to be a violation of the restriction, while if the granting of the right of way does not interfere with the carrying out of intention of the parties and the purpose of the restrictions, it will not be held to be a violation.” Id. at 1083.

In the following five eases, courts refused to enjoin the use of a roadway over property restricted to residential use only:

Bove v. Giebel, 169 Ohio St. 325, 159 N.E. 2d 425, is the case most often cited in behalf of the contention that a road across restricted residential property in one subdivision to another similarly restricted development does not violate the restriction. In Bove, defendant purchased from the owner of lot No. 29 in Crestwood Subdivision a 6-acre tract adjoining it on the west. At the same time, he purchased a strip of land 25 feet wide across lot No. 29 as a means of ingress to and egress from the acreage outside the subdivision. This strip was his only means of access to the 6-acre lot upon which he proposed to impose the same restrictions applicable to Grestwood, i. e., that it be used for residential purposes only, and upon which he intended to erect two private dwellings. Plaintiff, who owned lot No. 28 in the subdivision, sought to enjoin the use *270 of any part of lot No. 29 as a right-of-way. The Supreme Court of Ohio denied the injunction, stating:

“(I)t is apparent that, in order to conclude that the use of lot No. 29 proposed by defendants is forbidden, it would be necessary to revise the words of restriction No. 1 so that they will require not merely a use ‘for residence purposes only’ but ‘for residence purposes in the subdivision only.’
* * *
“(W)e have found no cases involving a situation such as presented by the instant case where .the property outside the subdivision will be restricted by its owners to the same extent as that within the subdivision. Hence, our conclusion is that the owners of a lot in a subdivision, which lot is restricted to use ‘for residence purposes only,’ may use such lot as a means of ingress to and egress from adjoining land that they own outside the subdivision if they impose upon such outside land the same restrictions that are applicable to lots within the subdivision.” Id. at 329, 330, 159 N.E. 2d at 428, 429.

In R. R. Improvement Ass’n v. Thomas, 374 Mich. 175, 131 N.W. 2d 920, the defendant owned the west 70 feet of lot No. 15 in Brookside Hills, • a highly restricted residential subdivision. Defendants also owned a much larger tract (parcel 3), adjoining lot No. 15 to the south but outside the subdivision. Defendants desired to use parcel 3 for residential purposes and proposed to grade a roadway over the 70-foot strip to provide access to and from parcel 3 to South Hills Road, upon which lot 15 fronted. Defendants agreed to impose upon parcel 3 the same residential restrictions applicable to Brookside. At plaintiff’s instance, the lower court enjoined the construction of the road as a violation of the restriction against any use other than residential purposes. Defendant relied upon Bove v. Giebel, supra. The Supreme Court of Michigan stated that it agreed with Bove “but with reservations.” It remanded the case to the trial court with instruction to make the following findings:

“(W)hether and how, if at all, the present residential advantages enjoyed by Brookside lot owners will or might be adversely affected by appellant’s proposal; whether a new traffic burden or maintenance problem will thereby be cast on dead end South Hills road, or for that matter, upon any other part of the subdivision’s roadways; whether the private roads of the subdivision as dedicated have since become public roads; whether appellant’s intended specifications for grading of the west 70 feet of Lot 15 and of location on parcel 3 of the two *271 proposed homes will in any way,, aesthetically or otherwise, impair the restriction-assured enjoyment of home ownership in the subdivision; whether strict conformity with the restrictions has been waived (as claimed by appellant in her vain motion to set aside summary judgment) and, in general, whether there are fair, distinguished from carping or trifling, reasons for denial to appellant of that which is sought by her.” Id. at 183-84, 131 N.W. 2d at 924-25.

In Baxendale v. Property Owners Association, Etc., 285 App. Div. 1148, 140 N.Y.S. 2d 176, the plaintiff sought a declaratory judgment establishing his right to construct a public road over a lot in a subdivision restricted as follows: “All plots be known and described as residential plots. . . . No buildings of any kind shall be hereafter erected upon premises except one detached single dwelling. . . . Nothing shall be done therein which may be or become an annoyance or nuisance of the neighborhood.” The court, noting that a road was not a building, held that nothing in these covenants prevented the construction on plaintiff’s property of a public road for ingress to and egress from adjoining property. Such a road, it held, did not violate the restrictions against offensive trades and it was not per se an annoyance or a nuisance. Accord, Mairs et al v. Stevens et al, 268 App. Div. 922, 51 N.Y.S. 2d 286. Upon the same reasoning, in Vinyard v. St. Louis County, 399 S.W. 2d 99 (Mo. 1966), the Supreme Court of Missouri held that the use of a platted driveway on a portion of a lot in a residentially restricted subdivision for access to apartments on adjacent land was not prohibited. The applicable covenants (substantially those of Baxendale, supra) prohibited all structures except single-family dwellings and provided that none should be used for business purposes.

In the five next succeeding cases, the courts did enjoin the use of a roadway over property restricted to residential use only.

In Duklauer v. Weiss, 18 Misc. 2d 747, 182 N.Y.S. 2d 193, the plaintiffs were lot owners in the high-class subdivision of Westerleigh. They successfully sought to enjoin the construction of a road through two lots owned by defendants Weiss and Marx. The lots in Westerleigh could be “utilized only for a private residence for one family,” and every plot had to be “not less than 3 acres.” Defendant Kaufman, who owned 53 acres of unrestricted land south of the subdivision, had been granted two easements over the lands of his neighbors, Weiss and Marx, for the benefit of his 53 acres. In upholding plaintiffs’ right to the injunction, the court said:

“A reading of the subject covenants individually or collectively leads this court to the inescapable conclusion that they were *272 enacted for the sole purpose of maintaining and preserving the highly residential character of all the properties located in the Westerleigh development even to the extent of forbidding the construction of the roads now contemplated by Kaufman. . . .”

Although Kaufman denied that he intended to subdivide the 53-acre parcel, the court noted that if he were allowed to construct the road, such a development was possible. It said: “Certainly, it could not then realistically be said that such roads were incidental, or an adjunct to, or served for the better enjoyment by Weiss and Marx of their respective residential homes.”

The court found its previous decision in Baxendale v. Property Owners Association, Etc., supra, no obstacle to this decision. That case, it said, “is clearly distinguishable,” for there “the courts were concerned with the type and character of building, if erected, rather than the use to be made of the property. The Appellate Division by a divided court held that a road was not a building within the meaning of the language employed in the restriction and that in the absence of a clear restriction against such use, the plaintiffs in that action were free to use a certain restricted lot as a means of ingress and egress to their adjoining land.”

In Donald E. Baltz, Inc., v. R. V. Chandler & Co., 151 S.E. 2d 441 (S.C. 1966), the developer sought to enjoin a purchaser from using a lot as a street in a subdivision restricted by covenants which provided: “1. No lot shall be used except for residential purposes. (This restriction is identical to the restriction in the case now before us.) * * * 3. No trailer . . . shall at any time be used as a residence. * * * 8. This property shall be used for single-family residences only. . . .” The defendant, who owned an unrestricted 40-acre tract adjoining the subdivision, purchased lot 18 therein for the purpose of opening a street connecting his 40-acre tract with a street wholly within the subdivision. The lower court enjoined the use of the street across lot No. 18. The Supreme Court affirmed, saying:

“Chandler urges that Bove is a 'compelling precedent’ for the conclusion that the use of lot 18 as a private driveway to a single family residence situated on adjoining property is not a violation of the restrictions on the lot. We do not so regard it.
“When covenants 1 and 8, supra, are read together, as they must be, we find that the permitted residential use to which the property shall be put is as the site of a single family residence, and, of course, such other use as may be incidental to the occupation of the residence as a habitation. The covenants in Bove *273 simply did not require that the lot shall be used for a single family residence as the only permitted residential use.” Id. at 444.

In Klapproth v. Grininger, 162 Minn. 488, 203 N.W. 418, 39 A.L.R. 1080, the plaintiff and the defendant Grininger owned adjoining lots fronting on Bear Lake. These lots were restricted “for residential purposes only.” The defendant Grininger granted to the other defendants, who owned lots to the rear of the lake-front lots and across the highway from the plaintiff and defendant Grininger’s property, a perpetual right-of-way (10 feet in width) across the eastern side of his lot adjoining the plaintiff’s property. This right-of-way gave the other defendants, their families, and invited guests access to the lake. The defendants then constructed a dock, which projected 75 feet out into the lake at the end of the right-of-way. The plaintiff brought the action to enjoin the defendants from using the strip of land as a right-of-way. The court, without mentioning the construction of the dock, stated the question involved as follows: “The question here is whether the easement granted by Grininger infringes the restriction that the land ‘shall be used for residential purposes only’.” The answer was Yes. “Such use of the land is not within any definition of a residential purpose; and devoting it to the purpose of a passageway for the occupants of other lands necessarily precludes using it for residence purposes, save, perhaps as a means of ingress and egress. We think that the use made of this strip of land is inhibited by the covenant, and that the learned trial judge reached the correct conclusion.” Accord, Edgewood Park Association v. Pernar, 350 Mich. 204, 86 N.W. 2d 269.

In Thompson v. Squibb, 183 So. 2d 30 (Fla. D. C. App. 2d 1966), the plaintiff sought to enjoin the defendant from constructing and using a roadway over lot 88 in Mobile Homes Estates for the purpose of connecting that subdivision with defendant’s subdivision of Thompson Estates, which adjoined Mobile Homes on the south. The use of land in Mobile Homes was restricted to “residential purposes only.” The opinion does not disclose what restrictions, if any, protected Thompson Estates. In sustaining injunctive relief, the Florida court said:

“In construing restrictive covenants the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant. . . .
“There is no ambiguity in the expression ‘shall be used for resi *274 dential purposes only.’ As employed in this covenant, the word 'only’ is synonymous with the word ‘solely’ and is the equivalent of the phrase ‘and nothing else.’ . . .
“It is obvious that the use of defendant’s lot as a connecting street so that there would be access from the streets of the adjoining subdivision to those of the subdivision for whose benefit the restrictive covenants were made is not in any sense a residential use or a use incidental thereto.
* * *
“. . . The defendant’s roadway or drive across the property in no way facilitates the permitted residential use to which the property is restricted.” Id. at 32-33.

The foregoing decisions illustrate the varying conclusions which different courts have reached. Each case must be determined on its own particular facts. Edgewood Park Association v. Pernar, supra. It is our opinion, however, that, nothing else appearing, restrictions imposed upon a particular subdivision are for the benefit of that particular development and no other. Therefore, if its lots are restricted to residential use only, that is tantamount to saying that they are restricted solely to residential use in that subdivision. We hold that the restrictive covenants in the Timbercrest Subdivision preclude the road proposed by defendant.

That the developer and purchasers of lots in Timbercrest understood that any use of a lot in the subdivision for a road or right-: of-way would violate the restrictions against nonresidential use is clearly shown by the amendment to the restrictions which Field and the first purchasers, plaintiffs Petch, executed and recorded on 21 July 1958. This amendment then became a part of the contract imposing the restrictions, and it must be considered in .determining the effect of the whole. Callaham v. Arenson, supra. The amendment was recorded at the time defendant purchased lots 6 and 7, presumably for the purpose of integrating his Oak Hills Subdivision with Timbercrest. An examination of the adverse conveyances of the grantors in his chain of title would have disclosed the amendment. Defendant was, therefore, chargeable with notice of it. See Reed v. Elmore, 246 N.C. 221, 98 S.E. 2d 360. If, without an amendment, “a semi-private driveway” between lots 11 and 12 of Timbercrest to the Brame property would have violated the restrictions against nonresidential use, a fortiori, the construction of a road to link Timber-crest with Oak Hill, a considerably larger subdivision, would violate the restrictions.

The map of Timbercrest reveals a small, tight subdivision through *275 which only one street, Timberly Drive, meanders. It is quite obvious that its developer and those who purchased lots therein did not contemplate that Timberly Drive should ever become a thoroughfare which would carry traffic from another subdivision. Their objective was a quiet, residential area in which the noise and hazards of vehicular traffic would be kept at a minimum and in which children could play with relative safety. It is likewise noted that the property immediately south of that portion of Forestwood Lane which is within lot 6 is outside both Timbercrest and Oak Hills subdivisions. The stipulations reveal that the property immediately to the south of the proposed road is not subject to the restrictions applicable to Timbercrest. If it is subject to any restrictions, the record does not so disclose.

The decision in Callaham v. Arenson, supra, relied upon by defendant, does not impinge upon the conclusion we reach here. In Callaham, the Boldridge Subdivision was originally composed of 11 lots. All but lot 6, which had a frontage of 245 feet, fronted 100 feet on Selwyn Avenue in the City of Charlotte. The side lines of each lot went back for 340 to 740 feet to Sugar Creek. The restrictions were that “all lots in the tract shall be known and described as residential lots.” Each was required to have at least 20,000 square feet with a width of not less than 100 feet. Only one detached, single-family dwelling not in excess of 2% stories, a private garage for not more than 3 cars, and outbuildings incidental to the residential use of the plot were allowed on any lot. Building lines, cost, and floorspace were also specified for the dwellings. There was no prohibition against the subdivision of the lots. Plaintiffs owned adjoining lots 6, 7, 8 and 9; defendants owned the remaining lots. Plaintiffs proposed to locate a 50-foot street, or roadway, along the line between lots 7 and 8 and to resubdivide their 4 lots from, a point not less than 150 feet back from Selwyn Avenue, so as to establish two rows of new lots to front on the 50-foot street, with each lot having an area of not less than 20,000 square feet and a width of not less than 100 feet at the front building set-back line. After the proposed subdivision, each of the lots fronting on Selwyn Avenue would also have an area of not less than 20,000 square feet and a width at the front building set-back line of not less than 100 feet. The same restrictions would be inserted in the deeds to the new lots as were contained in the deeds to the original lots. When the defendants threatened to restrain the plaintiffs from carrying out their proposed resubdivision on the ground that it would violate the restrictive covenants protecting the property, the plaintiffs brought the action “to remove alleged cloud upon title to real estate.” This Court, speaking through Johnson, J., found nothing in the restrictions which *276 would prohibit the resubdivision of the property and the opening up of the new street. It was noted that all the lots from 1 to 10, inclusive, shown on the map of the original subdivision contained areas largely in excess of 20,000 square feet, yet none of these lots was less than the minimum width of 100 feet.

“Necessarily, then, the covenant fixing minimum standards as to width and area authorizes resubdivision of the original lots into units as small as 200 feet in depth. ... In short, the plaintiffs’ plan conforms with all requirements set out in the Boldridge restrictive covenant contract. * * * The three controlling paragraphs of the contract, when considered each in its proper relation to the others, harmonize and reflect an overall meaning which is free of inconsistency or repugnancy.” Id. at 626, 80 S.E. 2d at 624, 625.

Callaham is clearly distinguishable from this case in that the streets which were the subject of controversy in the Boldridge Subdivision were all within the original subdivision itself. There was no plan to connect the new streets with those of any adjoining development. Here, the size and shape of the lots and the restrictions which contain limitations on resubdivision differentiate Timbercrest from Boldridge and disclose the different purposes and objectives of the parties involved in the two cases. The opening of additional streets within the Boldridge property was within the contemplation of the parties. In this case, it obviously was not. “The fundamental rule in construing restrictive covenants is that the intention of the parties as shown by the covenant governs.” 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions § 186 (1965).

The judgment of the lower court is

Affirmed.