Barbieri v. Ongaro

DRAPER, P. J.

Defendants appeal from decree enjoining certain uses of their land. The question is whether restrictive covenants between plaintiffs and a predecessor in interest of defendants are enforceable against defendants.

Plaintiffs owned a tract of land in Marin County. They conveyed a portion to Gragg, another to Wylie, and retained for themselves the third portion, on which they have built a summer home. Plaintiffs ’ deeds to Gragg and Wylie contained restrictions not detailed in this record, but which had become the subject of dispute among the three property owners. In 1953 plaintiffs, Gragg and Wylie executed an agreement designed to resolve the disputes. By this agreement plaintiffs were to quitclaim to Gragg and Wylie all interest in their lands; plaintiffs were to convey the lands remaining in their ownership to a title company, which would then reconvey to plaintiffs subject to specified restrictions; Gragg and Wylie were to convey their respective properties to plaintiffs, who in turn would reeonvey subject to similar specified restrictions. It was specifically agreed that these new restrictions “are to be effective as to all the above described lands” of

[755]

the parties; that “the above covenants shall be

deemed,

and taken to be, covenants running with the land for the common benefit” of the parties; “their heirs and assigns”; that upon any attempted violation of any covenant of the agreement or the deeds by “any of the several parties hereto, their heirs, successors or assigns, or anyone in possession” of any of the properties, any party may seek injunctive relief, and that in such litigation “this Agreement shall be considered . . . as conclusively setting forth the rights of the parties hereto, their successors and assigns.” The several deeds required by this agreement were executed and, early in 1954, the agreement and the deeds were recorded. Each deed provided that it should be “subject to the following conditions and restrictions,” and then set forth the restrictions specified in the agreement. No deed, however, either specifically referred to the agreement or expressly designated a dominant tenement.

Gragg then conveyed about half his land to another. In 1956, he conveyed to defendants Lang the remaining portion of the property Gragg had acquired from plaintiffs, together with some tideland property Gragg had separately acquired. Lang developed a plan for subdividing the whole of the land so acquired into five residential lots. Pursuant to that plan, he conveyed to defendants Ongaro, in 1957, about half the land he had acquired from Gragg. Excavation began on both the Ongaro and Lang properties for construction of a residence on each. This action for injunction was then commenced.