Farquharson v. Scoble

[681]

LENNON, P. J.

This is a suit in equity to enforce certain alleged building covenants claimed to be provided for under a general building plan designed by defendant, John Brickell Company, for the improvement, subdivision, and sale of a certain tract of land situated in the city and county of San Francisco, fronting on the Golden Gate and known as Seacliif. Demurrers to the complaint were interposed by the defendants, and were sustained by the trial court mainly upon the ground that the complaint did not state a cause of action, and this appeal is from the judgment entered in favor of the defendants upon failure on the part of plaintiff to amend. The sufficiency of the complaint, therefore, is the single question presented by this appeal.

It is unnecessary to recite in detail the elaborate matters of inducement indulged in by plaintiff in stating his cause of action. The substance of the allegations necessary for a discussion of the case is, first, that the Brickell Company adopted in the subdivision of the tract of land above referred to what courts have called a “general building plan,” under which, the parcels subdivided were to be used for high-class restricted residences. The complaint then alleges that in the formation of such plan an elaborate and detailed map was prepared by defendant showing the subdivision of the tract into lots, and that sales were made to plaintiff and others in accordance therewith and under the representation that all the subdivisions would be disposed of in conformity with such map and subject to certain restrictive building covenants designed for the development of the tract as a whole and for the benefit of every purchaser in particular. It further alleges that the defendant, John Brickell Company, had sold to the defendant, Thomas Scoble, parcels of land contiguous t.o the lots owned by plaintiff not in accordance with the subdivision as contained on the map under which it had represented the land would be sold, and subject to restrictive building covenants relating to the location of residence building with respect to side-line boundaries less onerous than those imposed on the adjoining property of plaintiff. It also avers by affirmative allegation and by the recital of certain facts a knowledge on the part of Scoble of the general building plan adopted by his codefendant, John Brickell Company, and of the restrictive covenants contained therein relating to the