Fairbanks v. MacReady

California Court of Appeal May 23, 1928 No. Docket No. 6273.Published

Before: Knight

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Holding. The court held that the judgment in favor of the defendant was supported by findings that the completed structure complied with all building restrictions and that there was no evidence of threatened or actual violations regarding the use of the property. Furthermore, the court held that the absence of a record of the evidence precluded a reversal based on the trial court's failure to make specific findings on certain issues.

Issues

Whether the trial court's findings were legally sufficient to support the judgment in favor of the defendant.
Whether the defendant could be enjoined from renting rooms in the absence of evidence that he threatened or intended to do so.
Whether the failure to make a specific finding on the 'first class' residence restriction constitutes reversible error on a judgment-roll appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Defendant therefore cannot be enjoined from doing something which he has not threatened to do, nor is in fact doing.”

“The judgment is therefore affirmed.”

KNIGHT, J.

This suit was brought to enjoin an alleged violation of certain uniform building restrictions contained in a deed to a lot which formed a part of a tract of land platted, subdivided, and sold, pursuant to a general plan

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or scheme for the improvement and development of the whole tract. Judgment was entered in favor of defendant, and plaintiffs appeal.

The building restriction in question provided: “That the premises shall be used for residence purposes only; that no apartment house, double house, flat, lodging house, hotel, or any building or structure whatever other than a first class private residence with the customary out buildings, including a private stable or garage, shall be erected, placed, or permitted on said premises or any part thereof; that such residence shall cost and be fairly worth not less than $5,000. ...”

The appeal is taken upon the judgment-roll alone, and the main question presented is whether the findings are legally sufficient to support the judgment. The following are the facts as they are established by the findings: The defendant was about to have moved on to the lot acquired by him in said tract an old two-story structure which was in a dilapidated condition and not fairly worth the sum of $5,000, for the purpose of altering and rebuilding the same; and the plaintiffs, claiming that said structure when completed would not be worth $5,000 and would not be a first-class private residence either in construction, appearance, or otherwise, nor in keeping with the other type or character of buildings on said tract, protested in writing to defendant against the same being placed on said lot. The protest was ignored and thereupon plaintiffs commenced this suit, obtained a restraining order, and applied for a temporary injunction. At the time the application for a temporary injunction was heard, however, the trial court found that notwithstanding said structure was not at that time a first-class dwelling-house nor worth the sum of $5,000, that it could be converted into a first-class dwelling-house and be worth more than $5,000. Upon the grounds mentioned the application for a temporary injunction was denied and the restraining order vacated “without prejudice,” however, the court declaring that “defendant's future work, construction, and alterations upon said lot in connection with said structure so moved on to said lot by them being at his peril should the building when completed not fully comply with the building restriction set up in the complaint herein.” The cause

Fairbanks v. MacReady

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KNIGHT, J.

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