It is well settled that a grantor of real property may restrict the use of it by restrictive covenants con
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tained in the deed. The limitation on the validity of restrictive covenants is that such must be clearly established and they cannot be contrary to public policy.
Grove Lakes Subdivision v. Hollingsworth,
The petition, as-amended, alleges: “That paragraph 3 of said protective covenants is so vague and indefinite that the same is void and unenforcible.” We are of the opinion that this covenant is not so vague and indefinite to be void as alleged because it clearly establishes the rights of the parties thereto and sets out a standard or framework by which the grantor’s right to judge proposed buildings is to be exercised. This standard requires that a building must be in “conformity and harmony of external design and general quality with the existing standards of the neighborhood.” As to what the general quality of the neighborhood is and whether proposed building plans conform thereto are matters which by agreement are left to the discretion of the grantor. *102 The covenant itself is not vague and indefinite, but clearly shows that the rights of the parties are that the grantee must submit his building plans to the grantor for his approval and the grantor must give his approval in writing if he determines that, in his opinion, the proposed building is harmonious and conforms to the standards, quality, and topographical locations in the neighborhood. Any limitation on this right given the grantor to reject plans is that such right must be exercised reasonably and in good faith.
Similar restrictive covenants which required that building plans be submitted to the grantor for his approval before the grantee could build on his property in a subdivision have been held to be valid by other jurisdictions. As to some of the decisions upholding the validity of similar restrictive covenants, see: Jones v. Northwest Real Estate Co.,
The covenant is valid; therefore, the trial judge did not err in sustaining the general demurrer to count 2.
The allegations of count 1 of the petition, as amended, attack the defendant’s refusal to approve the plans as being unreasonable, arbitrary, and capricious. In order to determine if the defendant acted unreasonably or in bad faith, there must be sufficient facts alleged to support a conclusion that the defendant’s act was unreasonable, arbitrary, and capricious. The petition alleges that the proposed plans comply with the protective covenants in all particulars and that defendant in denying approval of said plans is acting in an arbitrary and capricious manner and exercising an aesthetic control over the design of petitioner’s proposed dwelling. The petition alleges specifically that petitioner submitted to the defendant plans for the construction of a dwelling and residence upon the property described in his deed and that they are in conformity and harmony of external design and general quality with the existing standards of the neighborhood and as to the location of the building with respect to topography and finished ground elevations. A comparison of these allegations with the provisions of the covenant
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shows that he alleges that he has done just what the covenant requires—submitted his plans for the proposed residence which are in “conformity and hannony of external design and general quality with the existing standards of the neighborhood and as to the location of the building with respect to topography and finished ground elevations.” These are allegations of ultimate facts. “Ultimate issuable facts only, as distinguished from evidentiary facts . . . must be pleaded; by ultimate facts alone is meant the final and resulting facts, reached by processes of logical reasoning from the detailed or probative facts.”
Accepting the allegations as true, which must be done on general demurrer, the plaintiff has submitted plans for the building of a residence on his lot which meet all the requirements of the covenant and the defendant refuses to approve them. This being accepted as true, the refusal of the defendant to approve the plans submitted would be unreasonable, arbitrary, and capricious as alleged. Thus, count 1 of the petition as against general demurrer states a cause of action and the trial judge erred in sustaining the general demurrer to count 1.
The question of non-joinder of necessary parties argued by plaintiff in error is not before the court, as the trial court did not pass upon demurrers raising that question. Non-joinder must be taken advantage of by special demurrer. See
Crowley v. Calhoun,
Judgment affirmed as to count 2; reversed as to count !.■