Key v. McCabe

54 Cal.2d 736 (1960) J. R. KEY et al., Appellants,

v.

HAROLD A. McCABE et al., Respondents.

L. A. No. 25664. Supreme Court of California. In Bank.

Oct. 27, 1960. Powers, Himrod & Pepys, Eric C. Pepys and Robert M. Himrod for Appellants.

Mize, Larsh, Mize & Hubbard, Royal E. Hubbard and Delbert L. Larsh for Respondents.

McCOMB, J.

From a judgment in favor of defendants, after trial before the court without a jury, in an action to enjoin and restrain defendants from constructing a commercial building on a lot owned by them, in violation of certain building restrictions on the use of the lot for residential, horticultural and agricultural purposes, plaintiffs appeal.

Facts:plaintiffs are the owners of various lots located in tract 1056 in Orange County, California. The tract consists of 24 lots, all but 3 of which are improved with single-family residences. Three lots are vacant, including lot 1 owned by defendants. All the lots are subject to building restrictions imposed by deed dated September 19, 1940, limiting the use of the lots to single-family residences, agricultural or horticultural purposes, and prohibiting the carrying on of any business, trade, profession or other occupation upon such lots. The same restrictions cover adjacent property designated as tracts 1455 and 1613. The restrictions will terminate in 1969.

Defendants took title to lot 1 in tract 1056 by deed dated April 14, 1955, and at the time thereof had knowledge of the building restrictions.

Defendants' lot is located at the southeasterly corner of the intersection of Las Palmas Drive and Fullerton Road and runs 219.44 feet along Las Palmas Drive and 324.50 feet along Fullerton Road.

Fullerton Road is now, and was at the time the restrictions were imposed, a part of U.S. Highway 101. The westerly 150 feet of lot 1 fronting on Fullerton Road has been zoned "C-2 Commercial Zone" by the city of La Habra, and the remaining portion has been zoned "R-3 Limited Multiple-Family Dwelling Zone."

Defendants have commenced the construction of a commercial building on the southwesterly corner of their lot, in violation of the above-mentioned building restrictions.

After trial, the court found that the conditions relative to defendants' lot had changed since the effective date of the building restrictions; that the lot is not now desirable or suitable for single-family residence purposes; and that the construction thereon of the proposed commercial building or