149 N.E. 699 | Ind. Ct. App. | 1925
Complaint to enjoin appellees from erecting and maintaining a building upon a certain lot in the city of South Bend in violation of the restrictions in a deed to appellees' immediate grantor, and in violation of a zoning ordinance of said city. The facts were found specially and are, in substance, as follows:
Edgewater Place Addition in South Bend was platted by Whitcomb and Keller in 1919. In October, 1921, they conveyed lot 57 in said addition to Thomas and Emma Lee, by a warranty deed containing the following provisions:
"Grantees agree and bind themselves, their heirs and assigns that they will not move any buildings on said premises and will not erect or permit to be erected any building thereon except one dwelling for a residence for one family, and a garage for private purposes, and that said dwelling will not cost less than Four Thousand Dollars. Grantees further agree that they will maintain a lawn space between said dwelling, not including an open porch, and the front line of said lot of not less than 30 feet, and that they will not erect said dwelling less than 3 feet from either side of said lot. All restrictions and conditions herein contained shall be valid and binding and continue in force until January 1, 1945, provided however that such conditions and restrictions or any of them may be changed or abolished in any or all particulars by the owners of the lots in Edgewater Place whenever two-thirds of the owners unite in signing *661 and executing an agreement or resolution to that effect, which agreement or resolution shall thereupon be recorded in the proper records in the Recorder's office of St. Joseph County, Indiana, and be valid and binding upon the sellers and owners of said lots and upon all other persons."
Said deed was recorded November 3, 1921. In September, 1922, Lee and Lee sold, and by warranty deed without any restrictive covenants, conveyed said lot 57 to Albert and Viola Holycross hereafter designated "appellees." When this action was commenced, appellants were the equitable owners of lot 56 in said addition under a contract of purchase from Whitcomb and Keller, containing the same restrictions as are contained in said deed to Lee and Lee. Said lots are contiguous to each other and are thirty feet wide fronting on River avenue. In June, 1923, the common council of South Bend enacted a zoning ordinance, which, in so far as it affects these lots, provides that no building shall be erected thereon less than twenty-five feet from the street, and that there be a yard of not less than three feet on each side of the building. On September 10, 1923, appellees began the erection of a dwelling house on lot 57. The foundation of said house at its nearest point, exclusive of the porch, is 29 feet from the street line. Its nearest point to the line between lots Nos. 56 and 57 is twelve inches. The part of the house constructed nearest to the line of appellants' lot consists of a brick chimney five feet wide and which projects four inches from an alcove nine feet wide and sixteen inches distant from the line of lot 56. Said chimney and alcove are sixteen and fourteen feet respectively in height, but do not interfere with light or air to appellants' property.
On October 6, 1923, appellees commenced the construction of the alcove and chimney by putting in the *662 foundation therefor, and on that day built the side walls of the alcove out of boards and studding to a height of about five feet and the chimney to a height of four feet. Appellants had no knowledge that appellees were erecting this house until October 6, on which day, they notified the building commissioner of said city that said building was being constructed in violation of said ordinance. On October 7, appellees received a letter from the building commissioner calling attention to the fact that the building was being constructed nearer the side line of the lot than permitted by the ordinance and that he would be required to make the building comply with the ordinance. On that same day, appellees visited appellant Louis M. Schwartz, and offered to buy three feet off of the side of lot 56. Schwartz refused to sell and told appellees they must stop work on the building in the manner in which it was being done, but told them they could proceed in that manner if they paid appellants $200. There is no building on lot 56, except a two-car garage on the rear end, and appellants have no definite plans for the erection of a dwelling thereon. Construction of said house by appellees was completed October 30, and when constructed had an open brick porch facing River avenue, twenty-two feet distant from lot 57, the nearest point to River avenue being sixteen feet. No serious or substantial injury to appellants' property is shown to have been suffered by appellants and no serious or substantial injury to said property is threatened by the manner in which said building has been constructed and there is no evidence of any pecuniary damage to appellants by reason of the construction of said building. Upon these facts, the court concluded that the mandatory injunction should be refused and that appellants take nothing.
The questions presented for our consideration relate to the correctness of the conclusions of law. Appellants *663
insist that under the facts as found they were entitled to 1. a mandatory injunction requiring appellees to modify their building so as to comply with the restrictive covenants of the deed as set out in the special finding. This contention is based upon the theory that appellants, under the facts, are entitled to a mandatory injunction as a matter of right. But, as was said by the court in Chartiers, etc., Co. v. Mellon
(1892),
A court of equity is never active in granting relief which is against conscience or public convenience. See Fesler, Clerk, v. Brayton (1896),
The principles upon which mandatory and prohibitory injunctions are granted do not materially differ. *664
Courts are, however, more reluctant in granting the 3. mandatory writ. Allen v. Stowell (1905),
In Attorney General v. Algonquin Club (1891),
Courts have refused to grant the mandatory writ where there is no appreciable damages and where the writ would require the performance of an act which would be difficult and which 4. would involve a considerable expense. Harrington v. McCarthy (1897),
In Jackson v. Stevenson (1891),
Equitable relief by way of a mandatory injunction is, and for the most obvious reasons should be granted only in situations which so clearly call for it as to make its refusal work 5. real and serious hardship and injustice. Lyons v. Walsh
(1917),
Where the owner of a tract of land sells the same off in lots, with restrictions upon the use of the lots sold, he will lose his right in equity to enforce the restrictions against one 6. grantee, if he knowingly has permitted other grantees to violate the same restrictions, the effect of which violation is to abrogate the purpose of the restriction and alter the general scheme intended to be conserved by it. This rule is applicable whether the suit is brought by the original grantor or by one of the several grantees of land sold in accordance with the general scheme of the original grantor. Ocean City Assn. v.Chalfant (1903),
In actions for mandatory injunctions to protect restrictive building covenants, courts of equity have laid down two rules and applied them with great strictness: (1) The application 7. must be promptly made; (2) the common scheme of building must have been actually preserved. Zelman v. Kaufherr
(1909),
In Willock v. Arensberg (1912),
It is to be observed there is no finding that the owners of the property in subdividing and selling the same did so with a general building scheme in mind although there is an allegation in the complaint to that effect. There is no finding that any of the lots other than the two sold to the parties to this action were sold in accordance with such scheme or that the deeds to such other lots contained any restrictions as to the character or location of buildings that might be constructed thereon. The court, however, does find that more than twenty-five per cent. of the houses on River avenue, in the block where appellants' lot is located, do not comply with the building covenant in the deed to appellees' grantors, Lee and Lee, in that, such houses are located within thirty feet of the front line of the lots. Neither the number of such houses nor their location with reference to appellants' lot is disclosed. "If the covenant is silent; if there is no mutual agreement or understanding between the various owners creating an easement; if there is nothing in the surrounding *667
circumstances from which mutual rights can be fairly inferred, then no action can be maintained." Equitable Life Assur. Soc.
v. Brennan (1896),
It is well settled that a court of equity has the power and jurisdiction to enjoin the violation of restrictive building covenants such as are involved in this case, and that a 8. mandatory writ may be issued to compel the modification, or even the removal of a building erected in violation of such covenants. *668
In Evans v. Foss (1906),
In Spilling v. Hutcheson (1910),
In Bryant v. Whitney (1918),
In Equitable Life Assur. Soc. v. Brennan, supra, a tract of land in the city of New York was sold to one Page, who divided it into lots twenty-five by 100 feet *670 in size. At the request of Page, ten lots in the west half of the block were conveyed to one Villiard and the remainder of the lots were conveyed to Page. In the contract between Page and his grantor, it was provided that certain restrictions should be imposed upon the west half. Page then conveyed part of the east half of the block to Robert and Ogden Goelet with restrictions. A year later, he conveyed the two westerly lots in the east half to Mrs. Spaulding, with restrictions, and two months thereafter, he conveyed the rest of the east half to one Benson, with restrictions similar to those in the Goelet and Spaulding deeds. After Page's death, his devisee released Benson's grantee from the restrictions in the deed to Benson, and the defendant Brennan thereafter became the owner by mesne conveyances of the lots conveyed to Benson. The west half of the block was one of the most desirable residence districts in the city while the east half abutted on a railroad over which many trains passed daily and which was not a desirable place for residences. The Life Assurance Society, having purchased the Spaulding lots, brought an action to enjoin Brennan from erecting stables on his lots. It was held that the defendant rested under no restriction in regard to his lots, since the covenants in the several deeds from Page were, on their face, for the benefit of Page alone, and there was nothing to show any uniform restriction on the east half of the block.
Whitney v. Union R. Co. (1858), 11 Gray
In Maclary v. Morgan (1918),
It is not possible to reconcile all that has been said in the cases discussing the subject, but, in view of the fact that the granting of a mandatory injunction is a matter of grace, 9. resting in the sound discretion of the court, and since appellants have suffered no substantial injury by reason of the manner in which appellees' house was constructed, we hold there was no error in the conclusion of law.
Appellants ask, in case we hold they are not entitled to a mandatory injunction, that we reverse the cause with direction to the trial court to retain jurisdiction for the purpose of 10. hearing evidence and assessing their damages occasioned by reason of the location of appellees' house. No such request having been made of the trial court, we decline to reverse the cause for the purpose of assessing damages which, according to the facts found, are merely nominal.
Judgment affirmed.