Kilby v. Sawtell , 203 Ga. 256 ( 1948 )

1. Where an owner of land subdivides it into lots for the purpose of sale, under a general plan or scheme restricting the lots to certain uses, restrictions that are embodied in such general plan or scheme may in a proper case be imposed upon the lots beyond the express restrictions contained in the deeds to the purchasers, on the theory of implied covenants. Phillips v. Ingram, 163 Ga. 581 (1), 586 (136 S.E. 785).

2. "The usual implied covenant is based on an actual pre-existing plat and subdivision, on the theory that the fact of making the plat, and formulating a set of restrictions alike to all lots of the subdivision, shows an existing intention to restrict all alike, and the law in such circumstances implies a covenant to carry out the scheme thereafter created and evidenced by the plats under which the property was sold and purchased." Kitchens v. Noland, 172 Ga. 684, 688 (158 S.E. 562). "In such a case, the general scheme binds all the purchasers inter sese, not only as to the restrictions embodied in their respective deeds, but also as to such inhibitions as were embraced within the general scheme of the subdivision, of which they had or were chargeable with notice." Wardlaw v. Southern Railway Co., 199 Ga. 97 (2a) (33 S.E.2d 304).

3. It appears from the allegations in the instant case that an owner of land subdivided it into fifteen lots for the purpose of sale, and, on a map or plat describing it, which he caused to be recorded, was a statement, signed by him, that "Lots No. 1 thru 14 are restricted for residential purposes and a dwelling for one family with accessory uses shall be allowed on each lot and shall cost not less than $2500, and shall not be erected within 100 feet of Glyndale Drive nor within 25 feet of side lines;" lot 15 not being here involved. It was also alleged that the subdivision was known as "Section D, Glyndale," in Glynn County, and that three of the plaintiffs and the defendant had all purchased lots in such subdivision, the plaintiffs having purchased their lots in reliance upon such general scheme and plan of development, and two of them having built homes thereon in which they lived with their families. The defendant purchased his lot from one to whom it had been sold by the original owner of the subdivision. While the deeds under which the defendant thus claims did not contain any express statement as to restriction, they both, after describing the lots as being situated in that subdivision known as Glyndale, Section "D," and giving metes and bounds, stated that "A plat of said subdivision is recorded in Plat Book 1, in the office of the Clerk of the Superior Court, Glynn County, Georgia." The petition further alleged that the defendant, at the time of purchasing his lot, knew that the lots in the subdivision were and are restricted to residential purposes; nevertheless, he has erected on his said lot three large chicken houses and placed thereon a flock of about 500 chickens and is conducting thereon a chicken and egg ranch or farm, a commercial undertaking, in violation of the restrictions aforesaid: Held:

(a) The statement as placed upon the map or plat of the subdivision and signed by the owner, as quoted above, was a restriction against use of the lots for any purpose other than "residential purposes . . with accessory uses," and excluded use for "a chicken and egg ranch or farm, a commercial undertaking;" and the facts alleged were sufficient to show a general plan or scheme embodying such restriction, as to the 14 lots referred to in the statement quoted.

(b) Where a deed to land refers to a map or plat for a more complete description of the land conveyed, such map or plat will ordinarily be considered as incorporated in the deed itself. Talmadge Bros. Co. v. Interstate Bldg. Loan Assn., 105 Ga. 550 (31 S.E. 618); State of Georgia v. Georgia Railway Power Co., 141 Ga. 153 (2) (80 S.E. 657); Tilley v. Malcolm, 149 Ga. 514 (1) (101 S.E. 127). Under this rule, the reference made in the deeds to the recorded "plat" of the subdivision was sufficient to put both the defendant and his predecessor in title upon notice of the restrictions stated upon such plat, whether these restrictions be treated as express or implied covenants as to them. See Code, § 37-116. As to the question of notice, the case differs on its facts from Hancock v. Gumm, 151 Ga. 667, 679 (107 S.E. 872, 16 A.L.R. 1003), where the evidence did not authorize a finding that any plat containing the restrictions there in question was in existence at the time of the purchasers. See further, in this connection, Deaton v. Swanson, 196 Ga. 833 (1b) (28 S.E.2d 126); Westbrook v. Comer, 197 Ga. 433 (2), 438 (29 S.E.2d 574); Boston Water Power Co. v. City of Boston, 127 Mass. 374, 376; Carroll v. Hinchley, 316 Mass. 724 (56 N.E.2d 608); Doran v. Graham, 195 Ill. App. 65 (7).

(c) Under the preceding rulings as applied to the allegations of the petition as amended, the court did not err in overruling the general demurrer. See generally, in this connection, Phillips v. Blackwell, 164 Ga. 856 (139 S.E. 547); Caffey v. Parris, 186 Ga. 303 (197 S.E. 898); Jones v. Lanier Development Co., 188 Ga. 141 (2), 147 (2 S.E.2d 923); Atkinson v. England, 194 Ga. 854 (22 S.E.2d 798); England v. Atkinson, 196 Ga. 181 (26 S.E.2d 431); Dooley v. Savannah Bank Trust Co., 199 Ga. 353 (2), 357 (34 S.E.2d 522).

4. Nor, under the facts as stipulated in open court by the attorneys for the parties, was it error to direct a verdict in favor of the plaintiffs finding that the defendant be enjoined as prayed, or to overrule the motion for new trial based on the general grounds only.

5. The rulings made above are not contrary to any of the decisions of this court holding in effect that restrictions against the use of private property by the owner for any lawful purpose must be established beyond a reasonable doubt, since, under the pleadings and the facts stipulated in the instant case, the restriction to residential use was established clearly and to that degree of certainty required by law. Compare Randall v. Atlanta Advertising Service, 159 Ga. 217 (125 S.E. 462); Atlanta Assn. of Baptist Churches v. Cowan, 183 Ga. 187 (188 S.E. 21).

Judgment affirmed. All the Justices concur, except Atkinson, J., who dissents, and Wyatt, J., who took no part in the consideration or decision of this case.

No. 16005. JANUARY 10, 1948. H. B. Sawtell, George E. Roberts, and H. L. Dowling, owners of lots in a subdivision known as "Section D, Glyndale," and A. C. Wooten, filed a suit in the Superior Court of Glynn County against H. W. Kilby, who also owned a lot in the subdivision, to enjoin the latter from violating an alleged restrictive covenant. The court overruled a general and special demurrer to the petition as amended, and thereafter, on a stipulation of facts, directed a verdict for the plaintiffs. The defendant made a motion for a new trial, which was overruled. He then brought the case to this court, complaining of that judgment and assigning error also upon the judgment overruling his demurrer. It appears from the petition that the plaintiff Wooten owns a lot in the general subdivision known as "Glyndale," but does not own a lot in "Section D," which is here immediately in question. The case may, therefore, be further stated as if it had been brought by the other three plaintiffs only, the plaintiff in error not having sought to make any distinction as between him and the other plaintiffs.

The petition as amended, including an exhibit, showed substantially the following:

There is in said county a subdivision known as "Glyndale," and a section thereof is known as "Section D, Glyndale." A map or plat of said "Section D, Glyndale," showing 15 lots fronting on Glyndale Drive was made on December 1, 1937, and was recorded in the office of the Clerk of the Superior Court of Glynn County, having been filed for record on December 18, 1937. The aforesaid recorded plat or map contains the following restrictions:

"General notes.

"Lots No. 1 thru 14 are restricted for residential purposes and a dwelling for one family with accessory uses shall be allowed on each lot and shall cost not less than $2500 and shall not be erected within 100 feet of Glyndale Drive nor within 25 feet of side lines.

"Lot 15 shall be governed by the limitations in the deed of conveyance from the undersigned.

"Said restriction shall run until January 1, 1963.

"The undersigned owner of said property shown on this plot does hereby dedicate to the use of the public forever all streets shown upon this plot."

Lot 15 is not here involved, as it does not appear that any party to this case owns that lot.

All of the titles of the present owners of lots in "Section D, Glyndale," originated with the said T. R. Sawtell. Petitioners, H. B. Sawtell and H. L. Dowling, acquired their lots and have erected homes thereon on account of the aforesaid restrictions and in accordance with the general scheme and plan of development, in order that they might have their homes in a residential section, removed from business or commercial undertakings. Petitioner Roberts acquired his lot for the purpose of erecting a home thereon, under the same circumstances and conditions as just stated in reference to petitioners Sawtell and Dowling, both of whom now reside, with their families, in their homes in said Section D. The defendant Kilby did not acquire his lot directly from the original owner, but purchased the same from Mary Goodroe Exley, who had herself purchased from T. R. Sawtell. Each of the deeds under which the defendant thus acquired title described the land as Lot 3 in that subdivision known as Glyndale, Section "D," and after giving metes and bounds, stated: "A plat of said subdivision is recorded in plat book 1, in the office of the Clerk of the Superior Court, Glynn County, Georgia."

At the time said Section D, Glyndale, was laid off and subdivided, it was well known to the public that the same was to be restricted to use for residential purposes only, and such has been known to all of the interested public since said time.

Since the erection of the homes of your petitioners, H. B. Sawtell and H. L. Dowling, and since the purchase by petitioner, Geo. E. Roberts, of his said lot in said subdivision for the purpose of building a home thereon, the defendant H. W. Kilby has erected on his said lot in said "Section D, Glyndale," three large chicken houses, has placed thereon a flock of 500 or more hens and chickens, and is conducting thereon a chicken and egg ranch or farm, a commercial undertaking, in violation of the restrictions aforesaid.

The defendant knew at the time of purchasing his said lot, and at the time of erecting said chicken houses and placing on said lot said chickens, that said lots were and are restricted to residential purposes.

When the first chicken house was started by the defendant, your petitioner, H. B. Sawtell, observed the same and talked to the defendant about it, and was then advised by the defendant that he was expecting to build a home thereon soon and was preparing to take care of a few chickens for home purposes. The petitioner, H. B. Sawtell, was away from home for a few days thereafter and upon his return noted that the original chicken house had been enlarged and more built, and that hundreds of chickens were on the lot. The other petitioners knew nothing of the activities of the defendant until the houses were built and the chickens placed on said lot.

When the petitioners notified the defendant of his violation of the restrictions as to use of the lot aforesaid, and requested that he discontinue further construction of chicken houses and further preparation as to operating his chicken and egg ranch and farm, the defendant threatened and is now threatening to place around said lot a solid fence 30 feet in height, to place some hogs near the front gate thereof, and otherwise to use said lot in such manner as to make the entire subdivision as unattractive as possible. The defendant absolutely refused to discontinue the use of said lot for commercial purposes, stating that he intended to use the lot for any purpose he desired.

Said chicken and egg ranch or farm as operated by the defendant on the lot aforesaid adjoins Glyndale Drive, the main thoroughfare of said "Section D, Glyndale," is in plain sight thereof, immediately adjoins the lots forming the home of your petitioner, H. B. Sawtell, and is only one lot removed from the home of your petitioner, H. L. Dowling, and in plain view thereof.

The operation of a chicken and egg ranch or farm on said lot No. 3. of said "Section D, Glyndale," is in violation of the restrictions as to use thereof, both from a standpoint of the original general plan and scheme for the development of said subdivision, and from the recording of said restrictions in the original plat or map thereof.

The damage already done to your petitioners' homes and property is of such nature that there is no measure of damages to compensate them therefor, and the future damage thereto will not be computable in terms of dollars and cents, and is therefore irreparable. The petitioners have no adequate remedy at law to protect themselves from the damages aforesaid.

The defendant also, in addition to his demurrer, filed an answer admitting some of the allegations of the petition and denying others. He specifically denied that his alleged activities were in violation of any legal restrictions on said property.

It appeared that on the trial no evidence was introduced other than a stipulation of facts which is set forth in the judgment as entered by the trial judge upon the verdict which he directed, the judgment being in part as follows:

"The parties to said cause being present, together with their counsel, and said case being called for trial, the attorney of record for the defendant made and stated the following stipulation, to wit:

"That the defendant admitted knowing of the plan and scheme in the development of the subdivision of land in question to restrict the same to and for residential purposes only; that he knew of the recorded map in which said restrictions were stipulated and contained; all before his purchase of his said lot of land in said subdivision; that reference to said recorded map was contained in the deed to him covering the said lot of land in said subdivision, and in the deeds of his predecessors in title thereto; that the defendant was operating on said lot in said subdivision a chicken and egg ranch or farm, as alleged by the plaintiffs; and that the defendant had threatened to do the other acts alleged in plaintiffs' complaint; counsel for the defendant at the same time stating and agreeing that there was no issue of fact to submit to the jury. Counsel for both parties then and there orally agreed to the above stipulation and agreed for the court to determine the issue as a matter of law only, based on the pleadings and the stipulation aforesaid, and to direct a verdict for the party entitled thereto. Under the aforesaid stipulation and agreement of counsel for both parties, the court as a matter of law found that said restrictions as contained in the recorded plat aforesaid, coupled with the reference to said plat as contained in the deed to defendant and his predecessors in title, coupled with the further fact that defendant knew of the plan and scheme in the development of the subdivision aforesaid to restrict the same to residential purposes only, were binding upon the defendant, and the court then and there directed a verdict in favor of the plaintiffs, there being no issue of fact to be submitted to the jury."

It was further adjudged and decreed that the defendant be enjoined as prayed, and that he remove the chickens and chicken houses, on pain of being held in contempt of court.

In the brief of counsel for the plaintiff in error, it is stated that the controlling and probably the only factor in the instant case is the judgment on the ground demurrer to the petition as amended. There is no insistence on special demurrers, although it was specifically stated that the plaintiff in error does not abandon the assignment of error touching direction of the verdict by the court. The following is a brief summary of the contentions made by the plaintiff in error under his general demurrer: (1) There is no allegation respecting violation of the "residential" regulation, and the defendants in error (plaintiffs in the trial court) are attempting by mere implication to bind the defendant under some extraneous form of improvement plan, and there is no allegation that the defendant had any notice or knowledge of such plan or scheme at the time he purchased his lot. (2) The restrictions stated in the recorded map cannot be construed to imply or include chicken farms, mercantile establishments, or other enterprises. (3) The language used indicated that there were some restrictions for residential purposes, but this would not amount to a restriction to residential purposes. (4) Neither the deed by the original owner of the subdivision to the defendant's vendor, nor the deed by the latter to the defendant, contained any express restrictions as to use, but each merely recited "A plat of said subdivision is recorded in Plat Book 1, in the office of the Clerk of the Superior Court, Glynn County, Georgia," and this recital without more would not be binding upon any one as a restriction.