California-Michigan Land & Water Co. v. Fletcher

SEAWELL, J.

This appeal is taken from a judgment of dismissal entered after defendants’ demurrer to plaintiff’s complaint had been sustained with leave to amend and plaintiff failed or refused to amend. The grounds of demurrer were, first, that the complaint did not state facts sufficient to constitute a cause of action; second, that the facts set forth as a second cause of action failed to state a cause of action; third, fourth and fifth, that said complaint was ambiguous, uncertain and unintelligible, respectively, in that it could not be ascertained therefrom by or on what theory plaintiff sought to enforce restrictions against these defendants.

The complaint is in two counts. The first count contains the usual averments appropriate in a suit to quiet title, alleging that plaintiff is the owner of certain described land and premises situate in the Michillinda tract in the county of Los Angeles, that defendants claim an estate or interest in said property adverse to plaintiff, and that the claim of defendants is without any right whatever, and they have no estate, right, title or interest whatever in said land or premises or any part thereof.

“For a further and second cause of action,” plaintiff incorporates by reference the allegations of the first count of the complaint and then proceeds to allege that defendants are erecting upon said land and premises a building to be used as a dwelling which will be of a cost and value of less than $5,000, to wit, of the value of $500, and are occupying the uncompleted structure for residence purposes. It is further alleged that “plaintiff was at one time the owner of all of said Michillinda Tract, but has since sold more than half of the lots in said tract, . . . and has made all of such sales and the subsequent use of each lot to be sold expressly

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subject to the conditions and restrictions substantially similar to the following:

“ ‘It is provided and covenanted, said covenants running with the land herein described . . . that any building to be used as a dwelling erected or moved upon said premises shall be of the cost and value of not less than five thousand dollars ($5000). ... No building on said premises shall be occupied for residence purposes until the completion thereof and full compliance with said requirements as to location and cost.5'”