Ainsworth v. Elder

• Decision Date: 09 April 1932
• Docket Number: Civil 3122
• Parties: MRS. S. AINSWORTH, Appellant, v. MRS. MARTHA M. ELDER, Appellee
• Court: Arizona Supreme Court

9 P.2d 1007

40 Ariz. 71

MRS. S. AINSWORTH, Appellant, v. MRS. MARTHA M. ELDER, Appellee

Civil No. 3122

Supreme Court of Arizona

April 9, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Miss S. V. Ross, for Appellant.

Messrs Cunningham, Carson & Gibbons, for Appellee.

OPINION

LOCKWOOD, J.

Mrs Martha M. Elder, hereinafter called plaintiff, brought suit against Mrs. S. Ainsworth, hereinafter called defendant seeking to enjoin defendant against constructing or maintaining a certain so-called "duplex" building, designed for and suitable for use as a residence for two families, on lot 3 of block 16, plat B, F.Q. Story addition to the city of Phoenix. A permanent injunction was issued, which reads as follows:

"It is ordered, adjudged and decreed that the defendant, her agents, servants, employees, grantees, and assigns be forever enjoined from constructing that certain 'duplex' on Lot 3, Block 16, F.Q. Story Addition, Plat B, to the City of Phoenix; that they be enjoined from maintaining or continuing the maintenance of said duplex; that defendant remove the duplex or change its construction to make it a one family residence within a reasonable time; that the defendant, her assigns, lessees, or grantees be permanently enjoined from ever designing or using said building after its alteration as a residence for more than one family living separate and apart and that the defendant pay plaintiff her costs herein expended. This injunction, though permanent so long as the character of the above named plat remains unchanged, may be modified on sufficient showing that the character of the plat has changed so as to make it inequitable to further observe and uphold the building restrictions therein."

From such judgment this appeal is taken.

The facts in the case are not questioned, and may be stated as follows: Plaintiff herein is the owner of lot 4 in block 16, plat B of the F.Q. Story addition to the city of Phoenix, while defendant is the owner of lot 3, in block 16, of the same tract. After April, 1920, when the addition was laid out and subdivided, the then owners placed in all deeds issued to purchasers of the lots the following covenants:

"It is expressly understood and agreed by and between the Grantor and Grantee herein, and this deed is given and is accepted upon the express condition that the said land herein described is conveyed and is accepted subject to the following covenants and restrictions, and that such covenants and restrictions are made for the benefit of the lands herein described and shall inure to the benefit of and be binding upon the owners of all other lands and lots in said F.Q. Story Addition, Plat B, to the City of Phoenix.

"4. No building except residences, garages, barns and necessary outbuildings shall ever be erected, placed or permitted thereon."

"3. No residence costing less than Five Thousand dollars shall ever be erected, placed or permitted on any of said lots."

"6. Only one residence shall be erected on any one of said lots."

"It being expressly agreed and understood that the said F.Q. Story Addition, Plat B, has been platted and laid out as a choice and attractive residence district, and the foregoing covenants and restrictions run with the land and upon breach of any one thereof the property shall revert to the cestui que trust of the Grantor, his heirs or assigns; and that if there shall be a violation of any of said covenants or restrictions the Grantor herein or anyone owning land in said tract may bring an appropriate action in the proper court to enjoin or restrain said violation."

Defendant commenced the erection of a so-called "duplex" on her lot, which may be defined as a building under one roof and in general exterior appearance like the ordinary single family dwellinghouse or residence, but arranged and intended for occupancy by two separate and independent families. The sole question for our consideration is whether the erection or occupancy of a building of this nature is a violation of the covenants set up in the deed aforesaid.

Most of the early decisions construing covenants restrictive of the use of land have been based on the fundamental theory that an owner of realty was entitled to deal with it as he pleased, and therefore any restrictions on its use were most rigidly and strictly construed, and indeed, the courts frequently exercised considerable ingenuity in limiting their application. As time has gone on, however, it is realized that, especially in a crowded community, the manner of use of one piece of land directly and greatly affects the value and use of adjoining and near-by premises, and the later cases incline towards giving more and more weight to the doctrine of sic utere tuo ut alienum non laedas. For this reason it is now generally held courts should consider not only the strict and technical meaning of the particular words of restriction, but also the surrounding circumstances, the general purpose of the restrictions, and the manner in which they have been interpreted by the property owners.

The real dispute is over the meaning of the phrase "one residence," found in subdivision 6 of the covenant above set forth. Webster's New International Dictionary defines "residence" as "the house where one's home is; a dwelling-house; often, one of a superior or pretentious character."

And synonyms are given as "dwelling" or "mansion." "Dwelling-house" is defined as "a house occupied as a residence in distinction from a store, office or other building."

We think from these definitions and from our own knowledge of the common usage of the two words that they are considered as practically interchangeable, and that a decision which determines the meaning of one is in point in considering the other.

A similar question to the one in issue has been before the courts of a number of the states, and we find therein what seems to be an irreconcilable difference of opinion. The reasoning of the authorities which support the position of defendant is well expressed in the case of McMurtry v. Phillips Inv. Co., 103 Ky. 308, 40 L.R.A. 489, 45 S.W. 96. One of the conditions in the deed therein reads as follows:

"It is a condition of this deed that the property herein conveyed shall be used for residence purposes only, and that, in erecting a residence therein, it shall be built of brick or stone, and shall cost not less then seven thousand dollars and that in erecting said residence the front wall thereof shall be not less than thirty-five feet back from the sidewalk of St. James'...