State, Ex Rel. Stalzer v. Kennedy, Dir. , 46 Ohio App. 1 ( 1933 )

The relatrix Peggie J. Csernak is the owner of a parcel of land at the southeast corner of East boulevard and Buckeye road, with the approximate dimensions of 85 feet on East boulevard and about 135 feet in depth along Buckeye road. This lot is part of a tract consisting of more than five acres, the title to which at one time stood in the name of Carrie Baldwin, who transferred the same to one V.C. Leslie in 1909, who, on the same day, reconveyed said parcel to Carrie Baldwin by deed containing certain restrictive covenants and other provisions having for their object the establishment of a beautified boulevard as part of the boulevard system of Cleveland, with the abutting property highly restricted to residence purposes. All deeds of conveyance subsequent thereto, including the one to the relatrix, contained the uniform restrictive covenants imposed by the original common grantor.

It was provided in the reconveyance deed of Leslie to Carrie Baldwin that a certain portion of this tract should be deeded to the city of Cleveland to be used as part of this boulevard system, subject to reasonable rules and regulations that the park department of the city of Cleveland might impose, to the end that there might be uniformity and harmony in the improvements and uses.

The plaintiff Csernak accepted her deed with all these restrictions of record, and included therein.

East boulevard is not a duly dedicated public street, but is a part of the public park system of Cleveland. It is part of a continuous parkway extending from Gordon Park, on the lake, to Garfield Park, to the south, a distance of eight or nine miles, and all of this area included therein is under the control, rules, and regulations of the park department of Cleveland.

Among many other restrictions and conditions imposed by said original grantor, it is provided that no terraces or flats shall be erected or maintained within 100 feet of said parkway on any part of the Baldwin tract. Abutting property owners shall have access to such parkway subject to such reasonable rules and regulations as the city authorities may prescribe from time to time. No building or structure shall be erected or placed upon any lands conveyed by the original grantor within 100 feet of said parkway, nor shall same be used for mercantile, or mechanical, or manufacturing purposes.

To accomplish the laudable purposes of the original grantor and the public authorities of the city, the department established as a reasonable rule and regulation that no driveway shall be wider than twelve feet to service any property abutting on said parkway.

Examining all the restrictions and limitations upon the use of this property, and observing that it was the undoubted aim and purpose to establish a high-class residential district free from business, terraces, and apartments, this rule is reasonable. A twelve foot driveway will service any abutting lot used for residence purposes.

On or about August 31, 1931, the plaintiff Csernak leased her land at the southeast corner of East boulevard and Buckeye road to coplaintiffs herein. About one week prior thereto Csernak applied to the city of Cleveland for a permit to construct a driveway from East boulevard to a gas filling station located about 100 feet from the East boulevard lot line, which permit was then refused. However, the proper officials of the city entered into a certain agreement with her by the terms of which they permitted her to construct a curved driveway from Buckeye road to said gas filling station, from a point far within the 100-foot limitation, upon condition that she do certain planting and landscaping on the remainder of her property.

In May, 1932, the plaintiffs again filed an application with the defendants in the customary form for a permit to construct a twenty-three-foot driveway from East boulevard through this property to said gas filling station, which permit was refused. An action in mandamus was brought in the court below, praying for a writ to compel these defendants to issue said permit. After a full hearing, said writ was denied. Error is prosecuted to this court to reverse said judgment.

Keeping in mind the restrictive covenants uniformly established and inserted in every deed in every chain of title from the original grantor, and keeping in mind that the whole general scheme and plan are designed to create and maintain a first-class residential district abutting upon this parkway, it is our conclusion that the rule and regulation limiting a driveway to twelve feet is reasonable. The plaintiff Csernak accepted her deed with these limitations and restrictions therein, and accepted the property with knowledge that its use was specifically limited to the purposes therein expressed. To grant this permit in the light of all the circumstances of this case would be authorizing her to break the restrictions. It would empower her to construct and maintain a driveway designed, and large enough, to service a business place. In view of these facts, the defendants, in the exercise of sound discretion, were justified in refusing the permit.

The plaintiffs propose to construct in a northeasterly direction from the southwest corner of this parcel of land, a concrete or slag driveway twenty-three feet in width, through the very heart of this parcel to the gas filling station. This driveway would cover almost one-third of the square foot area of this parcel of land. It would be a clear dedication of the use of this parcel to commercial and business purposes. It is just as much such a dedication as if a lot was used to maintain such a driveway to service land beyond the 100-foot limit devoted to a large manufacturing enterprise.

It is our opinion that the rule and regulation of the park department challenged herein is fair and reasonable under the facts and circumstances of this case. The defendants as officials of the city were justified, in the exercise of a sound discretion, in refusing the permit.

It is our further opinion that to construct or maintain said twenty-three foot driveway in the manner and form as proposed would be a violation of the restrictive covenants contained in the uniform deeds to the lots abutting on this parkway.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

LEVINE and McGILL, JJ., concur.