Franzle v. Waters , 18 N.C. App. 371 ( 1973 )

197 S.E.2d 15 (1973) 18 N.C. App. 371

J. E. FRANZLE et al.
v.
William W. WATERS et al.

No. 7326SC121.

Court of Appeals of North Carolina.

June 13, 1973.

Palmer, Jonas & Mullins, P. A., by Michael P. Mullin, Charlotte, for plaintiffs appellees.

Levine, Goodman & Murchison by Sol Levine, Charlotte, for defendants appellants.

MORRIS, Judge.

The primary question for our determination is whether the construction of the proposed roadway over Lot No. 59 is violative of the restrictive covenants governing lots in Mountainbrook Subdivision No. 1.

The general principles governing construction of restrictive covenants in this State were well summarized by Sharp, Justice, in Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 238 (1967), as follows:

"In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions. Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619. The rules of construction are fully set out in Annot., Construction and application of covenant restricting use of property to `residential' or `residential purposes,' 175 A.L.R. 1191, 1193 (1948), and they are succinctly stated in 20 Am.Jur., Id. § 187 as follows:

`Covenants and agreements restricting the free use of property are strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction to affect lands not specifically described, or to grant rights to persons in whose favor it is not clearly shown such restrictions are to apply. Doubt will be resolved in favor of the unrestricted use of property, so that where the language of a restrictive covenant is capable of two constructions, the one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of the land.

Such construction in favor of the unrestricted use, however, must be reasonable. The strict rule of construction as to restrictions should not be applied in such a way as to defeat the plain and obvious purposes of a restriction.'" (Emphasis supplied.)

Defendants contend that the restrictive covenants cannot be interpreted as legally sufficient to prevent construction of the proposed roadway. We do not agree.

While each case involving the construction of proposed roadways over property restricted solely to residential use must be determined on its own facts, Long v. Branham, supra, the facts in the case sub judice are so strikingly similar to those in Long that we are of the opinion that decision there is controlling here. In Long, it was held that restrictive covenants limiting the lots in a subdivision to residential use only, precluded a lot owner in that subdivision from constructing a roadway across his lot that would connect the only street in that subdivision with a street in an adjoining subdivision. Examining the intent of the parties the Court in Long stated, at page 275, 156 S.E.2d at page 243:

"It is quite obvious that its developer and those who purchased lots therein did not contemplate that Timberly Drive should ever become a thoroughfare which would carry traffic from another subdivision. Their objective was a quiet residential area in which the noise and hazards of vehicular traffic would be kept at a minimum and in which children could play with relative safety."

Similarly, it appears that the original owners and subsequent purchasers of lots in Mountainbrook No. 1, so designated as residential lots, did not contemplate that a road 28 feet wide with a 60-foot right-of-way would carry traffic from another subdivision through Mountainbrook No. 1 thereby increasing the traffic flow on Mountainbrook Road. It is obvious from the provisions set forth in Exhibit B that a quiet residential area was planned and we feel that the trial judge was correct in concluding that the proposed roadway constituted a violation of the restrictive covenants.

Defendants also attack the propriety of the remedy of injunction in this case. They contend that there were insufficient findings of fact to support the conclusions of law that plaintiffs' remedy at law was inadequate and that irreparable harm, damage and injury would be sustained. Again, we do not agree.

It is well settled in North Carolina that injunctive relief is available as a remedy to enforce restrictive covenants. Realty Company v. Barnes, 197 N.C. 6, 147 S. E. 617 (1929).

The trial court found as a fact, in accordance with facts stipulated by Waters, that defendant Waters Construction Company intended to construct the roadway as soon as possible. The court also found as a fact, to which there was no exception, "upon representations to the Court by counsel for the parties" that defendant Waters Construction Company had in fact begun construction of the roadway. Clearly the danger was real and immediate that the roadway would be constructed in derogation of plaintiffs' rights under the restrictive covenants.

Defendants do not except to the findings of fact, but do except to the conclusions of law. We are of the opinion that the court properly concluded there was no genuine issue as to any material fact. We are also of the opinion that the court correctly applied the law to the facts.

Affirmed.

BROCK and VAUGHN, JJ., concur.