Roberts v. Gerber

187 Wis. 282 | Wis. | 1925

The following opinion was filed March 10, 1925:

Eschweiler, J.

The trial court' held that the plan proposed by the defendant Gerber in the laying out and disposing of lot 3 was a violation of the letter and spirit of the restrictive covenants which became attached to the land by the agreement of Johnston and Weiss in 1892, set forth in the foregoing statement of facts, and of which covenants and conditions defendant Gerber and those purchasing from him all had both constructive and actual notice prior to their starting to build their respective residences. He also in effect held that Gerber’s plan of providing for and permitting the erection of twenty-five or more individual dwellings, each owner or user of such residence acquiring a common or community interest in the improvements Gerber was to place upon the same in the way of drives, parks, water and sewerage facilities, pier and landing platform, bathing and boating beach, together with the obligations to be assumed by the respective purchasers of such lots to keep and maintain such improvements thereafter at common expense and in a manner to be determined by the Voice and vote of the majority of such owners or users, was a dedication of the property to a club purpose within the fair intent and meaning of that term as used in the said agreement.

In 1906 the' then owner of this identical lot 3, Mr. Uihlein of Chicago, who then owned other portions of Forest Glen, planned with others associated with him to erect upon this lot 3 a club house with a substantial pier on the lake front for a boat landing in connection with a golf course which had been laid out upon other portions of Forest Glen. It was contended by other owners of lake frontage in Forest Glen that such proposed use would be a violation of the Johnston-Weiss agreement and an action was then brought in the court below by and between several owners of such lake frontage in Forest Glen to have such contention settled. It was there determined that such proposed use was a clear violation of the restrictive covenants contained in the agreement of 1892, and such proposed use of lot 3 was permanently enjoined. On appeal to this court a full discussion of the facts there involved and consideration of the 1892 agreement was had and the judgment of the circuit court affirmed. Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701.

We do not deem it necessary to repeat at any length what was there declared to be the nature and effect of this agreement other than to indorse what was there said (p. 672) that the word “club” as found in the agreement is used in its most comprehensive sense and that “the restriction includes clubs of all kinds” (p. 673).

We are confronted, therefore, on this appeal with a former decision of this court not only upon the general proposition here involved as to the binding effect of such restrictive covenants upon all subsequent purchasers with notice thereof, but with a decision passing upon the identical agreement and its covenants here presented and where all the parties in the former action are in person or by privity in title parties herein.

It is earnestly urged by respondents under the well established doctrine, which we fully recognize, .that covenants undertaking to restrict the future use to be made of real estate are not to be favored, that by no proper or reasonable construction to be given to the word “club” can the proposed plan of defendant Gerber be included, and that the club house there proposed to be built and the building of which was enjoined in the Boyden v. Roberts Case, supra, was so manifestly different from the plan here before us that the former decision does not here control.

In Boyden v. Roberts the definition by Webster of the word “club” is quoted. To that definition may be added approved definitions given in the “New English Dictionary” by Sir James Murray, vol. 2, p. 534, as being, “III. A combination or association;” and again, “14. An association formed to combine the operations of persons interested in the promotion or prosecution of some object.”

It seems very plain that it would be hopeless on the part of the defendant Gerber to expect to dispose of this summer resort property in fifty-five by fifty foot lots to twenty-five or more individual purchasers if they are to have no common or community rights to lake frontage, bathing and boating privileges, and no common water supply. Evidently that which defendant Gerber by his proposed plan offers to prospective purchasers is the valuable common, community, or club right which each purchaser is to enjoy with all the others in that which is of the greatest value to summer resort property, namely, the lake frontage. To give individual and exclusive water-frontage rights in this strip of 153 feet to any but a much more limited number of purchasers than under the present plan, would of course be impracticable if not impossible. B}'- becoming a purchaser from Gerber under the agreement proposed by him, each purchaser thereby enters into a combination or association and joins in a common undertaking to carry out, for a common purpose, a plan whereby the extremely valuable advantage of summer resort lake frontage may be obtained for the number in association or combination, which, as individuals, it would be impossible for them to obtain. By such purchase they become associates in a common or community or club enterprise of keeping up, by common expense and pursuant to the voice of the majority, the very things that make such a purchase desirable and valuable.

We are therefore compelled to the conclusion that under the former holding of this court as to this very agreement and under a reasonable, necessary, and proper construction to be given to the terms of such agreement, in connection with the undisputed facts disclosed in this record, a similar conclusion must be reached here as to the proposition involved in the Gerber plan as was reached as to the club house and pier involved in Boyden v. Roberts, supra.

Complaint is made by appellants of the receiving in evidence, over their objection, of depositions of Johnston and Weiss, parties to the 1892 agreement, taken for use in the trial of Boyden v. Roberts. At the time they were taken, however, they were taken and used on behalf of those who, in that lawsuit, were taking an opposite view as to the construction to be given to the said agreement from that taken by the plaintiffs in this action. There they were taken in support of the contention that the club house and pier were not excluded by the term “club” in the agreement. Here they are offered on behalf of the contention that the Gerber plan is within the meaning of the term “club” and therefore in violation of the agreement. The court below, however, determined the case without consideration of such depositions, and we do likewise.

The question, therefore, whether such depositions ought to have been received and considered is not here of any material importance. We see no reason, however, why such depositions were not properly received under the provisions of sec. 4141a, Stats., as construed in Illinois Steel Co. v. Muza, 164 Wis. 247, 159 N. W. 908, as well as under general well recognized principles. Though such statute provides that in certain situations the testimony of a deceased witness or one absent from the state may be admitted in retrials or subsequent proceedings where the issue is substantially the same and where the party against whom it is offered shall have had an opportunity to cross-examine, yet here the present offer is as against those who, when the depositions were taken, had the opportunity of direct examination — a substantial equivalent. See, also, 22 Corp. Jur. 427; Radclyffe v. Barton, 161 Mass. 327, 329, 37 N. E. 373; Yale v. Comstock, 112 Mass. 267, 268.

By the Court, — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on June 22, 1925.