5 P.2d 23 | Cal. Ct. App. | 1931
This is an appeal from a judgment permanently enjoining defendant from using certain real property for any purpose other than one family residence or single bungalow purposes and specifically from using said real property for playground purposes in connection with an adjacent public school, or otherwise, or for any public school purposes whatsoever. The real property involved herein consists of lots 79, 80 and 81 of Tract No. 5690 in the city of Los Angeles.
Respondents, husband and wife, acquired lot 81 of said Tract No. 5690 on January 9, 1925, and were the owners of said property at the time the present action was instituted. Appellant acquired lots 79 and 80 in said tract during the year 1926. When the tract was laid out all of the deeds conveying lots therein contained, among others, the restriction "That lots 55 to 102 both inclusive, of said tract, shall be used for one family residence or single bungalow purposes only." All of the lots in the tract were laid out under a general residential plan and deeds to purchasers thereof contained similar restrictions, each inuring to the benefit *256 of the other lots in the tract. Certain other lots, sixteen in number adjacent to the property herein involved, were acquired by appellant during the month of November, 1922. School buildings were erected on eleven of such earlier acquired lots prior to the purchase by respondents of said lot No. 81, and the remaining five lots were utilized for school playground purposes. In March, 1927, two years after respondents had acquired lot No. 81, a second public school building was erected on the five lots which prior to that time had served as a playground and, during the fall of 1927, appellant commenced to utilize lots Nos. 79 and 80 for playground purposes for the younger children of the school.
As to the sixteen lots acquired by appellant in the year 1922, waivers of the above mentioned restriction were secured from the various owners of lots in the tract. No such waivers were secured as to lots 79 and 80. The present action was instituted on November 10, 1927, approximately two months subsequent to the time when respondents first observed that lots Nos. 79 and 80 were being used as a school playground. Respondents' objection to the use of the property for the purpose indicated was prompt and precludes the possibility of giving any consideration to the doctrine of acquiescence.
The principal point of contention between the parties to this action relates to the effect of the restriction contained in the deeds to the various lots. It is not open to dispute that it was the purpose of the subdividers of the tract and of lot purchasers under the restrictions to establish and preserve the tract for residential uses. Respondents contend that a building restriction of the character here under consideration is private property, an interest in real estate in the nature of an easement, and a property right of value which cannot be taken for public use without due process of law and compensation therefor, and that the validity of such restriction is not affected by the character of the parties in interest. Respectable authority is not lacking to sustain this contention. In Peters v. Buckner, 288 Mo. 618 [17 A.L.R. 543,
Judgment reversed.
Barnard, P.J., and Marks, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 3, 1931, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 7, 1932.
Curtis, J., and Langdon, J., dissented. *259