Feinberg v. Board of Education, City of Louisville
| Decision Date | 23 October 1925 |
| Parties | FEINBERG v. BOARD OF EDUCATION, CITY OF LOUISVILLE. THOMAS ET AL. v. FEINBERG. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County.
Suit by Lillian Thomas and others against Nathan Feinberg, in which the Board of Education, City of Louisville, intervened. From a judgment of the court sustaining defendant's demurrer to plaintiffs' petition, plaintiffs appeal, and from a judgment granting intervener, the Board of Education permanent injunction, defendant Feinberg appeals. Affirmed.
Building with rear towards school property held to violate restrictive covenant in deed.
Hugh B Fleece and R. W. Hunn, both of Louisville, for Feinberg.
Blakey Davis & Lewis, of Louisville, for Thomas and others.
Arthur M. Rutledge, of Louisville, for Board of Education.
Later the Goldback estate conveyed to others the north half of the remaining 100 feet fronting on Kentucky street, and which half fronted only on Brook street, and in that deed the board united for the purpose of releasing the restrictive covenant in so far as it applied to that 80 feet. In the course of time, Lillian Thomas and others became the owners of, and constructed a residence on, a portion of that 80 feet lying immediately next to the south portion of the lot not conveyed to the board, and appellant, Feinberg, in the first case in the caption, became the owner of the east portion of the latter 80 feet next to Brook street and fronting 55.5 feet on Kentucky street; while others became the owners of the south portion of the remaining 100 feet fronting on Kentucky street. Each of the owners of the south 100 feet fronting on Kentucky street erected dwellings thereon, with high picket fences separating the rear portions of their lots including one on the east line of the school property. Feinberg, who as said owns the corner lot of the south 80 feet along Brook street, fronting Kentucky street 55.5 feet, and being a part of the remainder of the Goldback lot after the conveyance to the board, began excavating for the erection of a one-story building 23.3 feet wide adjoining the rear of his residence with its front abutting the sidewalk on the west side of Brook street and running back west 40 feet with its rear towards the lot of the board. After he began excavating, appellants Lillian Thomas et al. filed this equity action in the Jefferson circuit court to enjoin him from constructing his contemplated building, on the ground that it fronted Brook street, and its rear was "toward" the property of the board, which was in direct conflict with the covenant contained in the deed of his remote vendor, the Goldback estate, plaintiffs claiming that such covenant inured to their benefit.
The board intervened in the cause, and sought the same relief against Feinberg, upon the ground that his contemplated building violated the restrictions in the covenant contained in its deed and which it had the undoubted right to enforce. The defendant Feinberg filed answer to the petition of Thomas et al. and to the intervening petition of the board consisting of three paragraphs, in the first of which it was averred, in substance, that the covenant contained in the deed to the board was only for its benefit, and did not embody any fixed scheme or plan of improvement on the remainder of the Goldback lot abutting 100 feet on Kentucky street and 160 feet on Brook street, and for that reason plaintiffs had no standing in court to enforce the restriction contained in that covenant. In the second paragraph he averred, in substance, what he claimed was the intention and purpose of the parties in inserting the covenant in the deed to the board by the representative of the Goldback estate and that it was never contemplated or intended that it should apply to the character of building that defendant intended to erect, and the building which was sought to be enjoined in this action. In the third paragraph there was pleaded substantially the same matter contained in the second one, followed by a description of the building he proposed to construct, and a detailed statement of the physical surroundings of his proposed building and averred that its rear would not, because of obstructions, be exposed to view from the school property and would be located about 61 feet from it, and he closed that paragraph by stating that he had no actual knowledge of the restriction until the filing of this action, and that at most the erection of his contemplated building would be only a technical violation of the covenant, and that if it was enforced he would be deprived of any profitable use of the rear portion of his lot. A demurrer was filed to the answer and each paragraph thereof, and the petition of plaintiffs and the intervening petition of the board was likewise demurred to by Feinberg.
The court sustained his demurrer to the petition and dismissed it upon the failure of plaintiffs to amend, and from that judgment they prosecute the second appeal above; and the court also sustained the demurrer filed to the second and third paragraphs of the answer, but overruled the one filed to the intervening petition of the board, and defendant declining to plead further, a permanent injunction was granted to the intervener as prayed in...
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