Joyce v. Krupp

KNIGHT, J.

This is an appeal by defendants from a judgment awarding damages in an action based upon the alleged violation of certain building restrictions contained in a deed.

Plaintiffs and defendants, respectively, were the owners of lots numbered 366 and 367 in a tract of land which had been theretofore subdivided and platted into a large number of blocks and lots and sold pursuant to a map thereof filed in the county recorder’s office. All deeds thereto, including those conveying the lots to plaintiffs and defendants, contained the following uniform building restrictions: That until January 1, 1930, “the said premises shall be used for residence purposes only. That no building or structure whatever other than a first class private residence, with customary out-buildings, including a private stable or

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garage, shall be erected, placed or permitted on said premises, or any part thereof . . . That only one such residence building shall be permitted on said lot at one time.” The evidence shows that said restrictions were inserted in said deeds pursuant to a general plan or scheme for the improvement of said tract, and the court so found.

All of said deeds also contained a condition and covenant reading as follows: “Provided, that a breach of any of the foregoing conditions shall cause said premises to revert to the said Grantor, its successors or assigns, each of whom, respectively, shall have the right to immediate re-entry upon said premises in the event of any such breach; and, as to the owner of any other lot in said tract fronting upon the same street and in the same block with the said premises, the foregoing restrictions and conditions shall operate as covenants running with the land, and the breach of any such covenant or the continuance of any such breach may be enjoined, abated, or remedied by appropriate proceedings by such Grantor, its successors or assigns or by any such owners, their heirs, devisees, executors, administrators, successors or assigns, but by no other person.”

Plaintiffs acquired lot number 366 in June, 1922, and about a month later established their residence thereon. In the interim defendants started to erect the building in controversy on their lot number 367, which adjoins plaintiffs’ lot on the south in the same block and fronts on the same street. It was not until August 14, 1922, however, that the construction of said building had progressed far enough to enable plaintiffs to determine the style and character thereof, at which time they discovered that it was designed to be a duplex or two-family dwelling, and consequently violated said building restrictions. The next day, August 15, 1922, and again on August 16, 1922, plaintiffs notified defendants in writing of such violation, against which plaintiffs protested and demanded that defendants comply with the terms of their deed; but the latter, ignoring said written notices and demands, proceeded to and did complete said structure as originally planned by them, which resulted in plaintiffs instituting this action on September 30, 1922. The complaint sets forth two causes of action, the first being an equitable one under which injunctive relief was sought, both prohibitory and mandatory; the second was one at law for