Bryant v. Whitney

WILBUR, J.

Plaintiffs appeal from the judgment denying them relief by injunction from an alleged violation of a building restriction by defendant, by the erection of two houses on one lot (13), each alleged to be of a cost of less than one thousand five hundred dollars, the restricted amount, and alleged to be “nearer than four feet from the side lines of said lot.” The court found that the houses were to cost more than one thousand five hundred dollars each, but that one was within three feet and eight inches of the south side line of the lot, with a chimney projecting one foot further, four feet in width. There was no privity between the plaintiffs and the defendant, who were lot owners within the same tract, but all derived their title to their lots from one Mary King Elliott, who purchased twenty-eight lots in the Dos Robles Park Tract, Alhambra, already subdivided, fronting on Dos Robles place, and thereafter at various times from January 15, 1908, to January'7, 1911, sold said lots, including those of the parties hereto, to various purchasers, each lot by its deed of conveyance from said grantor being subject to the same building restriction, which, so far as involved in this case, reads as follows:

“This deed is made and accepted upon the following express conditions, to wit:

“First: That said property shall be used for residence purposes only, and such residence shall cost not less than

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$1500.00 and shall be located not nearer than twenty (20) feet from the front line of said lot or nearer than four (4) feet from.either side line there.”

Plaintiff relies upon the rule that where, under a general' plan of improvement for a particular tract, such restrictions are imposed, equity will enjoin the violation of such conditions or covenants, if any, by the grantees of such lots. The original complaint, however, failed to allege a general plan of improvement, but after answer and trial it appears that an amended complaint was filed alleging, “That, pursuant to a general plan of improvement for the benefit of all lots of said tract, each lot of said tract was, by one grantor, sold and conveyed by recorded deed, each lot, except lot 1, subject to uniform building restrictions inserted in the deed thereof in words and figures following,” etc. This allegation was not denied, and the court made no finding on the issue so presented, if any, nor was the failure to so find specified' as an error on motion for a new trial. When the amendment to the complaint has been added after trial, apparently to conform to the proof, a formal answer thereto is unnecessary, for'the amendment is deemed denied.