Apple Building & Develpment Co. v. Snider

MUSSELL, J. This is an action to enforce a restrictive covenant in a deed by injunction and for damages. In 1948 plaintiff subdivided real property in Apple Valley in San Bernardino County. Prior to the sale of lots therein, plaintiff recorded restrictive covenants affecting said property. Thereafter defendant purchased three lots from the plaintiff and upon payment of the purchase price, plaintiff executed and [474]recorded deeds therefor to the defendant. The restrictive covenant involved herein provides as follows:

“No billboard of any character shall be erected, posted, pasted, painted or displayed upon or about any of said property. This restriction shall not prohibit grantor or their agents from maintaining signs of any size for lot sale purposes. No sign shall be displayed upon or about said property except residence signs giving the name of the occupant and the street number in accordance with a uniform design approved by the Architectural Committee.”

Defendant improved the lots so purchased, erected residential units thereon, and placed “for sale” signs of usual size and design in the windows of his houses. He also placed flags on the lots to attract attention of prospective purchasers. Plaintiff then commenced this action to enjoin the maintenance of the signs and flags and for damages.

The trial court concluded that “said restrictive covenant is unreasonable and unenforceable” and entered judgment denying the relief sought. Plaintiff appeals from the judgment.

On June 25, 1956, after plaintiff perfected its appeal herein and defendant had sold the lots involved, the defendant filed a motion in this court to dismiss the appeal on the ground that the issues in the case have become wholly moot.

Plaintiff conceded at the argument in this court that at that time there was no violation of the restrictions and that the signs had been removed from the property. However, it was argued that although the land had been sold and the signs may have been removed since the appeal was filed, plaintiff is entitled to at least an award of nominal damages if the covenant is enforceable and that a dismissal of the appeal will operate to affirm the judgment which held that the restrictive covenant was unenforceable. This motion has been submitted for our consideration in connection with the other points raised on this appeal.

The trial court found, among other things, that at the time defendant acquired title to the lots involved the said restriction was of record; that the sales contracts and deeds executed by plaintiff and defendant provided that defendant would abide by said restrictions and that a breach of said covenant would cause the real property to revert to the grantor or its successors in interest; that a breach of said covenant might be enjoined or remedied by the owners of the reversionary interest in the property; that defendant, since