Atlas Terminals, Inc. v. Sokol

Citation203 Cal.App.2d 191,21 Cal.Rptr. 293
PartiesATLAS TERMINALS, INC., a New York Corporation, Plaintiff, Cross-Defendant and Appellant, v. Arthur SOKOL et al., Defendants, Cross-Complainants and Respondents, Alice Rejto et al., Interveners and Respondents, and Gabor Rejto, Intervener, Cross-Complainant and Respondent. Civ. 25672.
Decision Date02 May 1962
CourtCalifornia Court of Appeals

Leslie & Bernson, Beverly Hills, for appellant.

Morris Abraham, Los Angeles, for respondents Harry L. Deutsch and Betty B. Deutsch.

Greenwald, Holland, Landrum & Baim, Los Angeles, for all other respondents.

Harry P. Warner; Zerner & Sims, Los Angeles, of counsel, for interveners.

ASHBURN, Justice.

Plaintiff Atlas Terminals, Inc. brought this action for declaratory relief and quiet title, having as its objective an adjudiction that restrictions imposed upon lots in tract No. 5542, commonly known as Carthay Circle Tract, in the City of Los Angeles, are not binding upon lots 63 to 69, inclusive, which are owned by plaintiff and front on the north side of Warner Drive in said tract. Plaintiff also owns lots 14 to 18 fronting on Wilshire Boulevard and plans to erect a 27-story office building thereon with a two-story agrage, 400 feet long, situated on lots 63-68, which adjoin 14 to 18 on the south. The Wilshire frontage was adjudged in 1938 to be no longer bound by the restrictions confining use to first class family residences; the properties adjoining that tier of lots on the south, i.e., lots on the north side of Warner Drive, have never been so relieved except lot 63 and 40 feet of lot 64 which were also cleared by a court decree. In its major aspects the judgment went against plaintiff though it declares unenforceable certain minor restrictions. 1 Plaintiff appeals.

The tract, consisting of 134 acres and comprising more that 490 lots, is situated at the southwest corner of the intersection of Wilshire Boulevard and Fairfax Avenue, extending thence to the Beverly Hills city limit on the west and to Olympic Boulevard on the south. Warner Drive parallels Wilshire and is one block south of it. McCarthy Vista runs approximately north and south and is the next street west of Fairfax. However, there is a passageway (apparently for pedestrians only) which runs north and south approximately half way between Fairfax and McCarthy Vista; it bears the name San Diego Way. Lots 63-69 lie between McCarthy Vista and San Diego Way and front south on Warner Drive.

The rapid growth of Wilshire and Fairfax as major traffic arteries and business frontage has substantially impaired the desirability of lots bordering on the street for first class residential purposes. The trial judge, after months of taking evidence and a careful inspection of the properties involved in the action, concluded that the Warner Drive Frontage in question had been so impaired by the encroachments of business on Wilshire that it is no longer desirable for first class residential use and is suitable and desirable only for business and commercial uses as an adjunct to Wilshire Boulevard property, but that enforcement of said restrictions upon plaintiff's lots (except 63 and part of 64) will continue to benefit and effectuate the purposes of same as originally imposed with respect to other lots in the tract such as those owned by interveners who 'fairly represent all owners of single family residential property' in the tract; that the lots on the north side of Warner Drive must be preserved as a buffer between business and residence use, though enforcement of the restrictions upon those particular lots will not be of any value or benefit to them. Viewing the matter in the large the court decided that, for the preservation of the residential nature of the tract as a whole, the line between business and residences must be drawn at the rear boundary of the lots on the north side of Warner Drive. In other words, that the erosion of business upon the perimeters of the tract should not be permitted in equity to advance unchecked from one tier of lots to another until the major purposes of the subdivision are defeated, for the tract as a whole after many years (1922 to 1961) 'is developed and well maintained as a single family residence district' and 'the continued maintenance of such restrictions is of material and continuing benefit to the remaining properties in said tract.' For reasons hereinafter set forth we have concluded that this ruling is correct.

Major restrictions around which this case revolves are these: 'That said lot or lots facing or fronting upon Warner Drive east of McCarthy Vista and on Del Valle Drive shall be used for residence purposes only; That no apartment house, flat, lodging house, hotel or any building or structure whatever other than one first-class single private residence of one-story only on Del Valle Drive, and of two-stories only on Warner Drive, with the customary out-buildings, including a private garage, shall be erected, placed or permitted on said lots.' The restrictions were imposed pursuant to a general and uniform plan of improvement and are molded in the form of conditions and covenants inuring to the benefit of all lot owners in the tract and constitute equitable servitudes upon each lot for the benefit of all others, binding upon and inuring to the benefit of the successors in interest of each lot owner.

Plaintiff's contention is that the neighborhood has so changed that the lots in question are no longer suited to single private residence use and it is inequitable to enforce that restriction against them and their owner, the plaintiff. There is, as will be shown, no hard and fast rule that clearing boulevard frontage of restrictions connotes a further right to do that with respect to a second tier of lots and then a third and so on until a whole tract is free merely because the frontage on a given street is no longer suitable for continuance of the use prescribed by the restrictions.

The guiding principle here applicable is thus stated in Fairchild v. Raines, 24 Cal.2d 818, 828, 151 P.2d 260, 265; 'Even if restrictions are not enforcible as to every lot in an area originally covered by an agreement they may be upheld as to a part of that area if such part is of sufficient extent and so located that the original purpose of the restrictions can be accomplished.'

7 Hastings Law Journal, page 210: 'California and other states have taken the view that restrictive covenants will be enforced if they are of 'substantial value' to remaining lot owners and if no 'radical' changes have occurred.' 2 Witkin, Summary of California Law (7th ed.), § 221, page 1052: 'But the change must be such that the original purpose of the restriction can no longer be realized.' 16 California Law Review, page 60: 'The change must be such as practically to defeat the purpose of the restriction.'

Mr. Justice Spence's dissent in Wolff v. Fallon, 44 Cal.2d 695, 699, 285 P.2d 802, 804, says this: '[O]ne of the main cases upon which the majority relies clearly indicates that the changed conditions in the neighborhood must have 'rendered the purpose of the restrictions obsolete.' Marra v. Aetna Construction Co., 15 Cal.2d 375, 378, 101 P.2d 490, 492. This court further said: 'But, if the original purpose of the coverant can still be realized, it will be enforced even though the unrestricted use of the property would be more profitable to its owner.' 15 Cal.2d at pages 378-379, 101 P.2d at page 493. * * *

'There is no finding by the trial court that any alleged changes in the neighborhood have rendered the purposes of the restrictions 'obsolete' or that the original purpose of such restrictions cannot be realized; and if any of the trial court's findings may be said to be to that effect, I find no evidence to support such findings.

'It seems clear that a line must be drawn somewhere dividing residential and commercial development in any tract where both are to be permitted. It seems equally clear that the residential lots which are contiguous to commercial lots will necessarily be somewhat less valuable. This situation is inherent in any plan of restrictive covenants to provide for orderly development; and it cannot justify the lifting of the restrictions on such contiguous lots unless the plan itself is to be destroyed.' Mr. Justice Traynor concured in this dissent.

The question of the effect upon a second tier of lots of breaking restrictions upon a first tier of business frontage seems not to have received specific discussion in the California decisions. But they enunciate principles which fully sustain the trial judge's views. Robertson v. Nichols, 92 Cal.App.2d 201, 206 P.2d 898, is pertinent. The plaintiff there sought unsuccessfully to break residential restrictions because that had been done with respect to Wilshire Boulevard frontage. The factual situation is stated at page 207, 206 P.2d at page 902: 'The tract as originally subdivided contained 117 lots. One hundred of the lots are improved with single-family residences, all of them 25 or more years old, except one built in 1939. At the northeast corner of Wilshire and Bronson (the southwest corner of the tract) there is located a seven-story apartment house; immediately to the east of the apartment building is a public market, and then a parking lot. Behind the apartment building, three lots on Bronson contain a tennis court and a garage. The five lots of plaintiffs are immediately to the north of the garage, front to the west on Bronson, and extend to Sixth Street, having a total frontage of approximately 240 feet.' At page 208 206 P.2d at page 902, the court said: 'It is true that the restrictions have been broken along Wilshire Boulevard, but as stated in Fairchild v. Raines, 24 Cal.2d 818, 828, 151 P.2d 260, 265, 'The fact that all the lots in the tract are not subject to the covenant is not...

To continue reading

Request your trial
6 cases
  • Nahrstedt v. Lakeside Village Condominium Assn.
    • United States
    • California Supreme Court
    • 2 Septiembre 1994
    ... ... LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., et al., Defendants and Respondents ... No. S029132 ... Supreme ... (Atlas Terminals, Inc. v. Sokol (1962) 203 Cal.App.2d 191, 195, 21 Cal.Rptr. 293; ... ...
  • Sain v. Silvestre
    • United States
    • California Court of Appeals Court of Appeals
    • 9 Marzo 1978
    ...Real Property Law (1975) section 23.19, page 1150.3 See Hurd v. Albert (1931), 214 Cal. 15, 3 P.2d 545; Atlas Terminals, Inc. v. Sokol (1962), 203 Cal.App.2d 191, 21 Cal.Rptr. 293.4 See Trahms v. Starrett (1973), 34 Cal.App.3d 766, 110 Cal.Rptr. 239; Seligman v. Tucker (1970), 6 Cal.App.3d ......
  • Mason v. Farmer
    • United States
    • New Mexico Supreme Court
    • 28 Abril 1969
    ...legal proposition, the position may have merit (See 5 Powell, Real Property, § 684 (1968); but cf. Atlas Terminals, Inc. v. Sokol, 203 Cal.App.2d 191, 21 Cal.Rptr. 293 (1962)). Under the facts here present we are not impressed with the argument. After the passage of more than 60 years since......
  • Pittman v. Boiven
    • United States
    • California Court of Appeals Court of Appeals
    • 6 Marzo 1967
    ...Cal.App.2d 819, 823, 276 P.2d 64; Spinazzola v. Margolis, 206 Cal.App.2d 648, 650, 651, 24 Cal.Rptr. 132; Atlas Terminals, Inc. v. Sokol, 203 Cal.App.2d 191, 209, 21 Cal.Rptr. 293; Bonaccorso v. Kaplan, 218 Cal.App.2d 63, 69, 32 Cal.Rptr. 69.) An appellate court will not search the record f......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT