Davis v. Miller

• Decision Date: 14 January 1957
• Docket Number: No. 19540,19540
• Citation: 96 S.E.2d 498,212 Ga. 836
• Parties: W. L. G. DAVIS v. W. C. MILLER, Jr., et al.
• Court: Georgia Supreme Court

Page 498

96 S.E.2d 498

212 Ga. 836

W. L. G. DAVIS v. W. C. MILLER, Jr., et al.

No. 19540.

Supreme Court of Georgia.

Jan. 14, 1957.

Rehearing Denied Feb. 13, 1957.

Syllabus by the Court

The restrictive covenants authorized exceptions in writing, which were duly executed pursuant to the authority retained. It was therefore error to grant an interlocutory injunction.

Louis A. Peacock, Albany, for plaintiff in error.

Durden & Durden, Albany, for defendants in error.

HEAD, Justice.

W. C. Miller, Jr., and others, filed a petition to enjoin W. L. G. Davis from comstructing a filling station on described property. Upon hearing, an interlocutory injunction was granted, and the exception is to that judgment.

The material facts pertaining to the controlling question in the present case are without dispute. The predecessor in title of the plaintiffs and the defendant developed Whispering Pines Subdivision, and had recorded in the office of the clerk of the superior court certain restrictions upon the development and use of the lots contained therein. In the recorded restrictions the developer retained the right to make exceptions from the restrictions, and subsequently conveyed to the defendant three lots free of certain restrictions.

It is the general rule that the owner of land has the right to use it for any lawful purpose, and restrictions upon its use must be clearly established and strictly construed. Lawson v. Lewis, 205 Ga. 227(3), 52 S.E.2d 859; Jordan v. Orr, 209 Ga. 161, 163(1-a), 71 S.E.2d 206. Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument. Atlanta, Knoxville & Northern Railway Co. v. McKinney, 124 Ga. 929, 930(3), 53 S.E. 701, 6 L.R.A.,N.S., 436; Smith v. Gulf Refining Co., 162 Ga. 191, 194, 134 S.E. 446, 51 A.L.R. 1323; Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 357, 34 S.E.2d 522.

In the present case, the dispute is centered on the right to make exceptions as contained in paragraph 8 of the restrictions. In construing the language of paragraph 8, little aid can be procured from a consideration of the restrictions in their entirety. It is stated in paragraph 1 that all of the lots in the subdivision, from 1 to 68 inclusive, shall be known and used as residential lots only, for the construction of one detached single-family dwelling, not to exceed two stories in height. It clearly appears, however, from other restrictions imposed, that a one-family dwelling could not be placed upon lots 1 through 6, fronting on Slappey Drive, including the three lots owned by the defendant. The copy of the plat attached as an exhibit shows that each of the lots 1 through 6 is less than 70 feet in width and less than 167 feet in depth. In paragraph 4 of the restrictions, it is provided that no residential structure can be erected on any lot that has an area of less than 15,000 square feet, and a width of less than 75 feet. None of the defendant's lots has an area of 15,000 square feet, nor is any of the lots 75 feet in width. In paragraph 2 of the restrictions, it is said that the main dwelling house must not be less than 40 feet from the front line 'on all lots that have a depth of 200 feet or more,' which indicates that the developer of the subdivision knew at the time the restrictions were imposed that there were lots of less than 200 feet in depth. Certainly he could and should have known from an examination of the plat that the six lots fronting on Slappey Drive were not 75 feet in width and were not, therefore, under the restrictions imposed, to be used for residential purposes. The above facts, however, are germane solely as an indication of the apparent conflicts in the restrictions, and the absence of clear, unequivocal language which might aid in determining the extent of the right to make exceptions retained by the grantor in paragraph 8.

Paragraph 8 of the restrictions provides that no owner of any lot 'shall or will manufacture or sell or cause or permit to be manufactured or sold on any lot or any portion of the premises or lots conveyed, any goods or merchandise of any kind or use the same for any business purpose except where expressly permitted in writing by the parties of the first part, * * * and will not manufacture or sell or permit to be manufactured or sold intoxicating liquors on said premises and will not carry nor permit any matter or thing which shall be a nuisance, unwholesome or offensive to the neighborhood or neighbors upon any of said lots.' (Italics ours.)

Clearly the words 'except where expressly permitted in writing by the parties of the first part,' retain to the grantor the right to make exceptions of the kind and character preceding this phrase. The plaintiffs contend 'that section 8 of the restrictive covenants is a reservation to permit, by written instrument, a use of structures erected on lots in Whispering Pines Subdivision for other than residential uses, but that there is no reserved authority to permit a structure, other than a family dwelling to be erected.' If the words 'or use the same for any business purpose' had been omitted, the plaintiffs' contention could not be sustained,...