Barton v. Moline Properties, Inc. , 121 Fla. 683 ( 1935 )

This case is before us on rehearing granted pursuant to filing of opinion herein on July 6, 1935.

It appears that in the determination of the merits in this case the court below followed the rule as stated by us in the case of Osius, et al., v. Barton, et al., 109 Fla. 556, 147 So. 862, in which we said:

"Because of the nature of covenants imposing restrictions on the use of real property, whether sought to be enforced as between covenanter and covenantee, or whether treated as enforceable because running with the land for the benefit of the parties for whose protection they were made, it seems to be now generally recognized by the best considered cases on the subject, that all the rules as to ending easements and profits, including those as to abandonment of the dominant owners, apply to such covenants, including the recognition of an implied condition in the original grant that the general policy of the law to dispense with encumbrances on title shall prevail, where enforcement of restrictive covenants is no longer of general usefulness, nor capable of serving the purpose for which the restrictions were imposed."

In the original opinion in this case it is said:

"Such restrictions were therefore subject to the general rule applicable to restrictive covenants of this kind that where the time during which a restrictive covenant is to endure has not been expressly limited by the parties, it should be implied that some reasonable limitation adapted to the nature of the case was intended, and that such restrictions as the stated covenants imposed on the use of any particular grantee's property, being in derogation of the otherwise free use and enjoyment of same, should be construed as extending for no longer period of time than the nature of circumstances and purpose of their imposition would indicate as reasonable for the duration of their enforcement without undue and inequitable prejudice to the property rights purchased and acquired by the original grantee and his successors in title, subject to such restrictive covenants."

And, again, it is said:

"In cases like this, each particular controversy over the term of duration of restrictive covenants on property uses must be decided on the equities of each particular situation as it is presented. The test for determining such equities is ordinarily whether or not the original purpose and intention of the parties to such restrictive covenants can be reasonably carried out, in the light of alleged materially changed conditions which are claimed to have effectually frustrated their object without fault or neglect on the part of him who seeks to be relieved by decree in equity from their further observance."

It will be borne in mind that the decree was entered on testimony taken pursuant to decree pro confesso on the bill of complaint. Therefore, the cause was tried on allegations of a bill of complaint which were held sufficient on demurrer, and testimony taken in support of those allegations no affirmative defense having been pleaded.

In view of these conditions, we hold it would not be proper for us to now reverse the chancellor who followed the law as definitely expressed by this Court in Osius v. Barton, supra.

We shall not in this case attempt to say what the result should have been, or might have been, had the defendants in the court below set up by defensive pleadings such defenses as may have accrued in their behalf by reason of the condemnation proceedings which resulted in the changed condition which the complainant greatly relied upon as the basis for its relief.

We are convinced that the language used in Osius v. Barton hereinbefore quoted and that used in the original opinion hereinbefore quoted should be qualified by the following statement:

"Where, however, it appears that such covenant or restriction is for the exclusive benefit of and that it is still of substantial value to the dominant lot, notwithstanding the changed condition of the neighborhood in which the said lot is situated, a court of equity will restrain its violation."

This, when added to the statements above referred to, enunciates a correct statement of the law in such cases. Pomeroy's Equity Jurisprudence, 4th Ed., Vol. 4, pages 3971-2; 14 R.C.L. 400, paragraph 100; 18 C.J. 401; Landell v. Hamilton,175 Pa. 327, 34 L.R.A. 227, 34 A. 663; Lattimer v. Livermore,72 N.Y. 174; Rowland v. Miller, 139 N.Y. 93, 22 L.R.A. 182,34 N.E. 765; Holt v. Fleishman, 75 A.D. Div. (N.Y.)

The rule as so stated will be applied in future cases.

It may be further stated that the decree in this case must be deemed and considered as applying only to that particular lot of the subdivision upon which the restriction is sought to be lifted and should in no way affect restrictions as applied to other lots in the subdivision.

The writer and Mr. Presiding Justice ELLIS and Mr. Justice BROWN are of the opinion that the decree in this case should be reversed because the record entirely fails to show that the restrictions are not of substantial value to the dominant lot and also because of the fact that the changed conditions upon which the complainant based its right of having the relief prayed is largely, if not entirely, attributable to the condemnation of a part of the lot involved for street purposes and it must be assumed that the owners of the lot affected by the condemnation received full compensation, not only for the value of the portion of the lot taken for street purposes but also for the damage to the remainder of the lot by reason of such taking, and that, having been so compensated, the owner of the remaining part of the lot is not now entitled to have a court of equity lift the restrictions and thereby convert the property to a use which will make it more valuable to the owner than it would have been had the change not occurred and the restrictions been lifted.

The other members of the Court hold that the decree should be affirmed although the language used in Osius v. Barton, supra, and in the original opinion in this case should now be reformed as above suggested for the future guidance of the bench and bar.

The result is that the decree is reaffirmed on rehearing. So ordered.

ELLIS, P.J., and TERRELL, J., concur.

WHITFIELD, C.J., and BROWN, and DAVIS, J.J., concur in the opinion and judgment.