Harrison v. Frye

WARNE, J. pro tem.

*

This is an action by respondent Harrison against appellants for an injunction to prevent the erection of residences and requiring the removal of such buildings partially erected which allegedly violate a recorded “Declarations of Restrictions” imposed upon the lots herein involved by the original grantor who is the respondent. The restrictions call for the erection of first class buildings only.

On January 30, 1938, respondent and his wife executed the restrictions on a parcel of property described as the Harrison Subdivision, and it was admitted by appellants that these restrictions were recorded and applied to the lots owned by the appellants.

On March 22, 1954, appellants obtained a building permit for the erection of the buildings in question. The materials proposed to be used were previously used materials purchased from buildings erected in Richmond near the Richmond shipyards and were 10 years old. The materials were described by some of the witnesses as being old and deteriorated and some of the fixtures as being 30 or 40 years old.

The appellants purchased the lots and commenced construction before title was formally delivered to them. They had no actual knowledge of the restrictions until the present action was brought; however, they did admittedly have constructive notice of these restrictions by reason of the recording.

Upon trial, respondent moved for leave to dismiss as to Frye, George Alexander and Louise Alexander. The motion was granted. The court rendered judgment against appellants enjoining them from all further proceedings in the construction of the buildings, requiring them to remove the buildings then under construction and awarding costs to respondent. Appellants’ motion for a new trial was denied. They appeal from the judgment.

The first contention made by the appellants is that the

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term “first class residence building” is so vague, ambiguous and uncertain that a building restriction requiring the erection of such buildings cannot be enforced. Appellants argue that building restrictions, by reason of their operation upon real property, are strictly construed since there are public policies in favor of the free use of land and the free alienation of land, and such restrictions must be clear, certain and unambiguous before they will or can be enforced.