175 S.W.2d 28 | Ky. Ct. App. | 1943
Affirming.
The case involves an implied restrictive agreement concerning the use of real property, or, as it has been called a reciprocal negative easement. It is a covenant which equity raises and fastens upon the title of a lot or lots carved out of a tract that will prevent their use in a manner detrimental to the enjoyment and value of neighboring lots sold with express restrictions in their conveyance. The question is brought to us by an appeal from a judgment sustaining a demurrer to and dismissing an intervening petition. The primary case was a suit for specific performance of a contract of sale between two of the appellees and is not of importance here except that the intervening petitioner prayed that the relief she sought be included in the judgment.
The Westover Development Company acquired title to a tract on both sides of Western Parkway in Louisville for the purpose of subdividing the whole of it into residential lots. In 1927 or 1928, it platted the portion of the tract lying north of Greenwood Avenue and named it Westover Park. In this record it is called Section No. 1. It is alleged that the company adopted a general plan for the development of the entire acreage, with a series of restrictions, one of which was that none of the tract should be sold to persons of African descent. These restrictions were incorporated in an agreement or document relating exclusively to Section No. 1, recorded in the office of the clerk of the Jefferson County Court. It is further alleged that it was the company's intention to incorporate similar restrictions into the conveyance of all the acreage and that it "announced its intentions generally and to the public at large by recording" the agreement, and "further by announcements made in connection with auction sales of the lots included in said subdivision." At that time the remainder of the tract on the south side of Greenwood Avenue was not subdivided. The petitioner, Mrs. Helen McCurdy, now appellant, purchased one of the lots in Section No. 1 at the original sale with the understanding and upon the belief that the rest of the tract would be developed and sold in the same way and in keeping with the covenants and restrictions contained in the deed to the lot which she purchased, and in conformity with the recorded covenants and repeated public announcements made by the Westover Development Company. In reliance upon those *589 statements, she bought the lot and spent money in erecting a residence and otherwise improving it. Many others did the same thing under those conditions. All of the property in Section No. 1 is owned and occupied by white people.
The Company later subdivided the remainder of the tract and called it "Westover Park, Section No. 2." These lots were offered at auction on July 11, 1939, with public announcements that they were to be restricted against ownership and occupancy by negroes. It seems that the sales were ineffective or never made. Thereafter a contract was entered into by which the Westover Development Company sold all of Section No. 2 to the Standard Realty Corporation, which had been organized by negroes for the purpose of acquiring the tract and selling the lots for residences of colored persons. The Shawnee Improvement Company, created by neighboring white people, also obtained a contract from Westover Development Company to buy the same property. The original suit involved these two contracts. The court adjudged specific performance of that made with the Standard Realty Corporation.
It is alleged in the intervening petition that this purchasing corporation "knew or should have known" that the Development Company had consistently and repeatedly announced that Section No. 2 constituted a part of the general plan of development of the entire acreage of Westover Park and that its ownership was restricted as described. It is further alleged that notwithstanding these things the Standard Realty Corporation was asserting that it had obtained the property free and clear of restrictions. It is pleaded that this contention was contrary to the publication and generally known plan of development originally adopted by the Westover Development Company, and in reliance upon which the plaintiff had purchased and improved her lot; that should this Section No. 2 be sold without the restrictions, in addition to violating the plan adopted and the representations made, it would materially impair the value of the property of the plaintiffs and others similarly situated. Appropriate relief was prayed, but the court adjudged that the Standard Realty Corporation acquired title without any restriction.
Stemming from the failure or inadequacy of common-law principles, which were developed in a spirit of *590 hostility to restraints on real property, the public zoning of private land and the attachment of equitable or implied servitudes have been developed in the last half-century or so in order to meet problems arising from industrial and commercial operations and other detrimental conditions, sometimes only social or aesthetic, in residential sections of cities. Among them is the possibility of creating restrictions in favor of the land of third persons. This development has been called "an equitable appendix to the common law as to servitudes." "The Progress of the Law, Equitable Servitudes." 33 Harvard Law Review, 813, op. cit. 814; "Fifty Years of American Equity," 50 idem, 171, op. cit. 215; Note, "A New Phase in the Development of Affirmative Equitable Servitudes," 51 idem, 320. The history and interpretation of this subject, with various illustrative or concrete cases, are given in those articles. The servitude may be affirmative or negative. Among the applications are equitable easements or servitudes to city lots by reason of "building schemes" and of sales made from plats or plans laying out streets or showing restrictions and rights, or other circumstances which reasonably lead purchasers to believe that they existed.
It sometimes occurs that a case decided years before a legal view or concept was definitely or generally accepted, or the law pertaining to the subject matter had become crystallized or classified, will be found which recognized the principle. Sometimes such a case but foreshadows the establishment of a doctrine by gradual processes. The principle of equitable servitude was recognized and applied by this court in January, 1848, in the case of Rowan's Executors v. Town of Portland,
The principle of reciprocal negative easements applicable to conditions like that presented in this appeal is well covered by Sanborn v. McLean,
In the Sanborn case, supra, it is related that in 1891 a subdivision of Detroit was planned by McLaughlin strictly for resident purposes on Collingsworth Avenue. Ninety-one lots on that avenue were sold and residences erected thereon. Many of the deeds contained the express restriction to residence purposes but some of them did not, though in every instance the plan had been observed for thirty years. The united efforts of all persons interested had carried out the common purpose of making and keeping all the lots strictly for residences. One of them was acquired through mesne conveyances by McLean and wife who purposed to erect a gasoline filling station on the rear end of it facing another street. It was held that title to their lot was burdened with a reciprocal negative easement, created by the common grantor of all the lots with the right to demand observance thereof passing to each purchaser of the other lots in the subdivision having notice of the easement. It was held that as the recorded deeds of the lots on the plat contained restrictions to perfect and carry out the general plan and resulting servitude, and as the McLean's lot was within its scope, they and their predecessors *592 in title were bound by constructive notice. The McLeans had had an abstract of title to their lot made when they purchased it and it did not reveal any restriction; and he also claimed that the grantor had informed him it was unrestricted. A partly finished dwelling was then on the lot. The court thought that considering that the character of the use made of all the lots was open to their view, they were put upon inquiry into the record beyond merely asking their grantor.
In Bimson v. Bultman,
In Scull v. Eilenberg,
In McComb v. Hanly, supra, it appears there were two different tracts platted as one development or subdivision, called Sections No. 1 and No. 2. Conveyances of the lots contained a series of restrictions, the preamble of each reciting that they applied to the property "hereby conveyed only." While recognizing the principle *593 of imposing such servitudes upon each lot where there is a general plan or scheme for doing so, although there was an omission in particular conveyances, the court held the word "only" was so significant that it must be regarded as definite notice that the vendor reserved to itself the power to deal freely with restrictive features as it saw fit in succeeding conveyances. The court also denied application of the doctrine of implied servitudes upon the ground that the initial grantor had effected the restrictions upon the manner of use even though it or its agents orally represented to purchasers at the time that the other lots would have the same restrictions imposed upon them when conveyed in the course of subsequent sales.
The other cases summarized in the annotations in 60 A.L.R. 1216, and 144 A.L.R. 916, recognized the possibility of creating reciprocal servitudes of this character upon all lots in a subdivision by implication of a general scheme or plan of development. But no other case is disclosed where a court imposed or fastened such restriction, tangible or substantial legal basis for it being absent. In our own case of Bondurant v. Paducah Illinois R. R. Co.,
The appellant makes special reference to Scheuer v. Britt,
Our recent case of Foos v. Engle,
It does not appear that the east half of that subdivision was as distinctly separated from the other half as is Section No. 2 from Section No. 1 of the subdivision with which the case at bar is concerned. The greater distinction, however, is that upon which the decision was principally rested, namely, the effect of the provision incorporated in all other deeds that all lots were sold for residential purposes only and that the purchaser had knowledge of the restriction. The facts almost, if not altogether, bring the case within the class where every deed contained express covenants like in Biltmore Development Co. v. Kohn,
The appellant's case is deficient, it seems to us, in respect to the time and character of the representations *595
claimed to have been made, and weak in respect to the notice or knowledge of the purchaser, the appellee, Standard Realty Corporation, when it bought all of Section No. 2. To create the burden of an equitable or implied restriction by reason of a general plan and scheme, it must have been annexed by a contemporaneous, enforceable agreement. Sprague v. Kimball,
The judgment is affirmed.