Holliday v. Sphar

• Decision Date: 20 December 1935
• Citation: 262 Ky. 45,89 S.W.2d 327
• Parties: HOLLIDAY v. SPHAR.
• Court: Kentucky Court of Appeals

89 S.W.2d 327

262 Ky. 45

HOLLIDAY v. SPHAR.

Court of Appeals of Kentucky

December 20, 1935

Rehearing Denied Feb. 4, 1936.

Appeal from Circuit Court, Clark County.

Action by W. R. Sphar against W. M. Holliday. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

Marcus C. Redwine and J. Smith Hays, both of Winchester, for appellant.

Franklin W. Stevenson, J. M. Stevenson, and D. L. Pendleton, all of Winchester, for appellee.

RICHARDSON Justice.

A. H Hampton, on October 22, 1919, conveyed to W. F. Randolph 45 acres of land on the west side of Boone avenue fronting South Belmont street, in Winchester, Clark county, Ky. It was a part of Hampton's farm. Its four boundary lines are of unequal length and angles. About one-third of it was within the city limits. It was conveyed "as an addition to the city" and later called Hampton's Court. The recited consideration for the tract was $45,000 cash, "and the further consideration of the agreements and covenants" set out in the deed, to "run with the land." The covenants of the deed required streets of certain widths to be laid off and dedicated for street purposes, and that "No dwelling house shall be built in any part of said addition, when laid off into streets, lots and alleys, closer than 25 feet to the pavement line, and no residence shall be built on Boone avenue or Belmont street, which is now known as the Colbyville Pike, costing less than thirty-five hundred ($3,500.00) dollars, and no part of the property herein sold shall ever be sold or leased to any person of African descent." "No dwelling house shall be built on the new street next to the orchard at any point closer than four hundred (400) feet to Boone avenue which costs less than thirty-five hundred ($3,500.00) dollars."

Hampton owned a gas line on and under the land. He reserved it, with certain rights respecting it.

On October 29, 1919, Randolph subdivided the 45 acres into lots, each with 25 feet front. On a plat of the subdivision he wrote, signed, and acknowledged, and caused to be recorded in the county clerk's office of Clark county, the office in which Hampton's deed to him was recorded, this statement: "No dwelling house shall be built in any part of said addition, when laid off into streets, lots and alleys closer than twenty-five (25) feet to the pavement line." On the plat a red line is drawn 25 feet from the front of each lot, indicating the 25 feet referred to in the statement indorsed on the plat.

The corporate limits of the city of Winchester at that time was in the form of a circle, 1 mile in diameter. Its area, therefore, was 502.6560 acres. The city's population was 8,333. Soon after Randolph acquired the title, he advertised and sold the lots at public auction. The advertisement of the sale contained these statements:

"All the lots in this beautiful new subdivision absolutely without reserve-- your opportunity has arrived when you can buy that home site right where you want it, where the people of Winchester have been trying to buy for years. No one has built a home in Winchester in recent years without first trying to buy a site from Mr. Hampton. Drive out and look this place over and if you ever expect to build that permanent home in Winchester you will certainly buy a lot in Hampton Court on Wednesday, October 29th."

"For a long time your city has been growing more than any other city in the section--a steady growth--now we find nearly all desirable places for building high class residence property has been used up. People are trying to come to Winchester. It is impossible for them to locate when they can find no homes. On Wednesday, October 29th, an opportunity will be given to the people to buy the very choicest building lots that have been offered in Winchester, when Hampton Court lots will be sold at public auction."

W. M. Holliday, on the 9th day of May, 1935, acquired title to lots Nos. 1, 2, 3, 4, and 5 in block A of this subdivision. His deed carried the restrictions contained in the deed of Hampton to Randolph. His lots lie at the southwest corner of the intersection of Boone avenue and Belmont street, as located on the plat. On Holliday declaring his intention to construct a service station on his lots for the conduct of business thereat, W. R. Sphar, who owned lots Nos. 6 and 7 in block A, adjoining Holliday's, filed this action for injunction relief to prevent his erecting the station and engaging thereat in business. The circuit court granted the relief sought. Holliday appeals.

A number of witnesses testified as to their knowledge and understanding of the intention of Hampton and Randolph to restrict the use of the lots for residences only, and as to their knowledge of the effect and influence on the use and vendible value of the lots, if and when the service station were erected and business conducted thereat. Others deposed that such station would not be injurious to either. Sphar insists that Hampton's deed to Randolph restricts the use of all of the lots into which the 45 acres were divided to residences only. Holliday contends contrariwise. The duty devolves upon us to determine the issue thus presented.

In such case the rule is that restrictions on the use of property should be given that effect which the expressed language of the instrument containing the same authorizes, when considered in connection with the circumstances surrounding the transaction and the object which the parties had in view at the time they executed it. Magowan et al. v. Young et al., 188 Ky. 74, 221 S.W. 234; Clark v. Devoe, 124 N.Y. 120, 26 N.E. 275, 21 Am.St.Rep. 652; Easterbrook v. Hebrew Ladies' Orphan Society, 85 Conn. 289, 82 A. 561, 41 L.R.A. (N.S.) 615; Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398; Brown v. Hojnacki, 270 Mich. 557, 259 N.W. 152, 97 A.L.R. 621; Boston-Edison Protective Ass'n v. Goodlove, 248 Mich. 625, 227 N.W. 772; Palfrey v. Killian, 224 Mo.App. 325, 27 S.W.2d 462; Walker v. Haslett, 44 Cal.App. 394, 186 P. 622; Dime Sav. Bank of Brooklyn v. Butler, 96 Misc. 82, 160 N.Y.S. 954.

" 'The law favors the free and untrammeled use of real property. Restrictions in conveyances on the fee are regarded unfavorably, and are therefore strictly construed.' Scharer v. Pantler, 127 Mo.App. 433, 437, 105 S.W. 668, 669. See, also, Williams v. Carr, 213 Mo.App. 223, 225, 248 S.W. 625; Charlot v. Regents Mercantile Corporation (Mo.App.) 251 S.W. 421, 423; Breadon v. Paugh 48 S.W.2d 853, currently decided. * * * Being in derogation of the fee conveyed by the deed, such covenants will not be extended by implication to anything not clearly expressed in them, and if there be ambiguity in the terms of the covenant, or substantial doubt of its meaning, such ambiguity should be resolved, if reasonably it can be, in favor of the use complained of. Bolin v. Tyrol Investment Company, 273 Mo. 257, 262, 200 S.W. 1059, L.R.A. 1918C, 869; Breadon v. Paugh, supra." Mathews Real Estate Co. v. National Printing & Engraving Co., 330 Mo. 190, 48 S.W.2d 911, 913, 81 A.L.R. 1039.

The vendor's oral representation, or his advertisement of the sale of lots, that the land is to be wholly devoted to one purpose is not operative as an estoppel to use a portion of it for a nonrestricted purpose. Such is merely to be considered as a circumstance in ascertaining from the language used in the deed the intention of the parties to the deed containing the restrictions. A dotted or other line on a plat showing the distance buildings are to be erected from the street is also a mere circumstance to be considered for like purpose. Radey et al. v. Parr et al., 108 N.J.Eq. 27, 153 A. 628; Kime et al. v. Dunitz et ux., 249 Mich. 588, 229 N.W. 477; Stephens Co. v Binder et al., 198 N.C. 295, 151 S.E. 639; Library Neighborhood Ass'n v. Goosen, 229 Mich. 89, 201 N.W. 219. Under the general rule governing the interpretation of written instruments, it is permissible for the expositer to place himself as nearly as possible in the position of the maker of such instrument, and to this extent parol evidence is admissible to show the facts and circumstances surrounding the maker at the time the instrument was executed. Matthews v. LaPrade, 130 Va. 408, 107 S.E. 795. The parol testimony offered herein was competent only for this purpose. Thomas v. Scott, 72 S.W....