Whitmore v. Stern , 25 Ohio App. 344 ( 1927 )

This action was commenced for the purpose of enjoining defendant Fannie B. Stern from erecting an apartment house on her premises on Drexel avenue in the city of Cleveland, claimed to be in violation of restrictions existing thereon. Some 30 or 35 additional persons, owning lots on Drexel avenue, were made defendants, and filed answers and cross-petitions insisting on the restrictions and asking an injunction to prevent the defendant Fannie B. Stern from violating them. In the common pleas court the trial resulted in a decree granting an injunction as prayed for.

The evidence and agreed statement of facts show that defendant Fannie B. Stern is the owner of two lots on the north side of Drexel avenue, one lot having a dwelling house thereon and the other being vacant, and that she is threatening to erect an apartment house on her premises, claimed by plaintiff to be in violation of certain restrictions governing the lots abutting on Drexel avenue.

It appears from the evidence that the Deming Realty Company was the owner, in 1906, of a tract of land through which Drexel avenue now extends. This tract of land was bounded on the west by East 105th street, and on the east by Parkwood drive. The land was platted, and three streets constructed, running east and west, extending through the tract from East 105th street to Parkwood drive, one of these streets being Drexel avenue. Drexel avenue is a little more than a quarter of a mile in length and has about 60 lots abutting thereon.

On March 26, 1906, the first lot in this allotment abutting on Drexel avenue was conveyed by the Deming Realty Company to one David R. James, and the deed contains the following restrictions and covenants:

"But subject to the following reservations, limitations, restrictions, and conditions, which are also a part of the consideration of this conveyance, and shall be binding on the heirs and assigns of the grantee, and shall run with the land, to wit: That said premises shall be used for residence purposes only by the grantee, his heirs, and assigns; that no intoxicating liquors of any kind shall ever be manufactured or sold on said premises; that no building shall be erected or placed on said premises which shall cost and be of value less than $5,000, and not nearer than 35 feet from the front and street line to the front line of the porch, nor nearer than 8 feet from the east line of said premises; that no double house, two-family house, or shop, shall be erected or placed on said premises; that no terrace or apartment house shall be erected or placed on said premises; that no fence or inclosure of any kind shall be erected or placed within 60 feet from the front and street line of said premises; that the general grade shall not be over 18 inches higher than the top of the curb.

"The grantor further covenants that they hold all other lands by them abutting on Drexel avenue subject to the same restricting covenants as are herein set forth, for the benefit of the grantee, his heirs, and assigns, and that each deed given by them for any of said lands shall contain the same restricting covenants that are herein set forth, which shall inure to and be for the benefit of the grantee herein and his heirs and assigns."

After the execution of the deed to David R. James, numerous other conveyances were made of other lots during the years 1906 to 1911, all of which deeds, excepting the one conveying lot No. 87, contain restrictions and covenants the same as above set forth. The deed for lot 87 contains the same restrictions except of a terrace or apartment on that lot.

In the year 1920 a synagogue, with gymnasium, school, and other facilities, known as Jewish Center, was constructed at the southeast corner of Drexel avenue and East 105th street. This building was erected by virtue of the provisions of a consent decree entered in the Court of Appeals in an action brought by Leopold Adler against the Jewish Congregation. At the northeast corner of East 105th street and Drexel avenue there was erected in 1920 a two-story brick block, on the main floor of which are business stores, and, on the second floor, apartments. This building extends clear to the street line on Drexel avenue frontage, but the entrances are all on East 105th street, except the rear entrance. All residences erected on Drexel avenue between Parkwood drive and East 105th street have been erected in accordance with the restrictions already quoted. All of the buildings are single residence buildings, each of them manifestly costing in excess of $5,000, and they stand not nearer than 35 feet from the street line, and no double or two-family house has been erected on the street, and no terrace or apartment house, and there is no fence or inclosure nearer than 60 feet from the front street line, and all buildings are erected to a uniform grade, including the property of the defendant Fannie B. Stern.

At the request of counsel on both sides the members of this court viewed the district involved in this litigation, driving over Drexel avenue and that portion of East 105th street and Parkwood drive near thereto, and from this inspection it clearly appears that Drexel avenue is a fine residential street of the city.

Originally, East 105th street was devoted to residences, but it has become almost exclusively a business section and is occupied by places of business and apartment houses. Much litigation has arisen growing out of the restrictions involved in this action, but that litigation related to property abutting on East 105th street. The litigation, relating to the property where the synagogue has been constructed, terminated, as already stated, by a decree rendered by consent of all parties, and the decree in that case provides that it is "without prejudice to the rights of the plaintiff and those similarly situated, and without in any wise affecting the validity of the restrictions on said Drexel avenue." Such a decree could not in any wise affect the rights of the parties to this case. It amounts to no more than a voluntary release of restrictions so far as the synagogue is concerned.

In the other litigation relating to lots having a frontage on East 105th street, brought to enforce the restrictions, the contention was made by the defendants therein that the lots fronting on East 105th street were not embraced within the uniform plan of restriction that was adopted for Drexel avenue, and that the conditions had so changed on East 105th street, which had then become a business street exclusively, that it would be inequitable to force the owners to use East 105th street frontage for residence purposes, and that in permitting it to be used for business purposes no injury would accrue to owners of property fronting on Drexel avenue. The court in rendering decrees in favor of the defendants in those cases must have found one or both of these issues in their favor. We find nothing in any of those decisions that is in any way controlling as to the rights of the owners of property fronting on Drexel avenue.

No doubt can arise of the existence of the restrictions, and full knowledge of their provisions by Fannie B. Stern, all of which appears by the agreed facts. She claims, however, that by reason of changed conditions and by reason of the fact that owners and occupants of private dwellings within the allotment have, without objection, permitted the restrictions to be violated by various persons, the owners are estopped from setting up the restrictions as a bar to her erecting an apartment house on Drexel avenue. The evidence along this line shows that various residents on Drexel avenue have at different times displayed signs indicating that they had a garage for rent. This, of itself, would clearly not be any violation of the restrictive covenants. Some evidence was introduced showing that one family on the street raised chickens, but whether this was a mere incident of the occupancy of the premises as a residence, or whether it was carried to the extent of conducting a business, does not appear. Some evidence was introduced tending to show use of one of the properties on the street as a colored employment agency, and that the rear part of the property of Julius Miller was used for garages, but the evidence discloses he owned and kept two cars and one truck on the premises, the truck being used in his business, which was conducted elsewhere. We do not think this would be any violation of the restrictions.

The evidence discloses that one or two colored families occupy residences near Mrs. Stern's property, but there is no restriction against the use of the property by colored people. The evidence discloses that an attorney at law has his sign on one house, and that a plumbing firm has a sign in front of a dwelling house, but merely having such signs on the premises is not a violation of any restriction, and it does not appear that business was transacted thereon. One neighbor gave music lessons in her residence to children, and another neighbor kept boarders, but it does not appear that there was any more than one common dining room and one common kitchen, or that more than a single family lived in the house.

Out of some 55 to 60 residences on Drexel avenue, all but 3 or 4 are used and conducted strictly in accordance with the restrictions, and against the 3 or 4 violators of the restrictions no proceedings appear to have been taken by Mrs. Stern. Indeed, her chief objection is that certain of the properties are being used in a way different from that contemplated by the restrictions. We do not think this is a sufficient ground to justify a court of equity in holding that all of the restrictions should be nullified. There was a uniform scheme of restriction adopted as appears clearly by the evidence, and this finding is in no sense inconsistent with prior decisions that property fronting on East 105th street is not within the scope of the restrictions. These restrictions are solemn covenants entered into by all of the parties for their mutual advantage, and must not be violated without justification. It is entirely clear that the restrictions are of substantial value to most of the owners of property fronting on Drexel avenue, and it would be manifestly inequitable for a court to sanction their violation, notwithstanding the fact that there has been a violation of the restrictions by a few of the owners of property abutting on Drexel avenue. The case is within the principles announced in Brown v. Huber, 80 Ohio St. 183, 88 N.E. 322, 28 L.R.A., (N.S.), 705.

A judgment and decree will be entered in favor of the plaintiff and cross-petitioners, enjoining the construction of an apartment house.

Decree accordingly.

WILLIAMS and LLOYD, JJ., concur.

Judges of the Sixth Appellate District sitting in place of Judges SULLIVAN, VICKERY and LEVINE of the Eighth Appellate District.