Allemong v. Frendzel, 17512

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 363 S.E.2d 487,178 W.Va. 601
• Parties: James W. ALLEMONG and Helen Allemong, His Wife; Vincent A. Howard and Mary V. Howard, His Wife; Ronald R. Reeder and Eileen Reeder, His Wife v. Donald J. FRENDZEL and Lillian R. Frendzel, Husband and Wife.
• Docket Number: No. 17512,17512
• Decision Date: 18 November 1987

Page 487

363 S.E.2d 487 178 W.Va. 601 James W. ALLEMONG and Helen Allemong, His Wife; Vincent A.
Howard and Mary V. Howard, His Wife; Ronald R.
Reeder and Eileen Reeder, His Wife
v.
Donald J. FRENDZEL and Lillian R. Frendzel, Husband and Wife. No. 17512. Supreme Court of Appeals of
West Virginia. Nov. 18, 1987.

Page 488

[178 W.Va. 602] Syllabus by the Court

1. A valid restrictive covenant may be enforced by one other than a party to the restrictive covenant provided that the parties to the deed in which the restrictive covenant originated intended that the restriction should benefit the land of the person claiming enforcement.

2. "The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish." Wallace v. St. Clair, 147 W.Va. 377, 390, 127 S.E.2d 742, 751 (1962).

3. "Valid restrictive covenants applying to a residential neighborhood cannot be nullified by changes in the neighborhood's character unless the changes are so radical as effectively to destroy the essential objects and purposes[178 W.Va. 603] of the neighborhood's original plan of development." Syl. pt. 1, Morris v. Nease, 160 W.Va. 774, 238 S.E.2d 844 (1977).

4. A restrictive covenant which provides "that no alcoholic beverages shall be sold on said premises, and this covenant shall run with the land" is valid. Where the grantor included the covenant in all subsequent deeds conveying a particular parcel of property with the intention to preserve and protect the quality of the neighborhood, a trial court may grant injunctive relief against a grantee who took the property with full notice of the restrictive covenant, provided that changes in the neighborhood's character are not so radical as to destroy the essential objects and purposes

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of the neighborhood's original plan of development.

Charles W. Hamison, Berkeley Springs, for appellees.

Richard L. Douglas, Martinsburg, for appellants.

McHUGH, Justice:

This case is before this Court upon the appeal of Donald and Lillian Frendzel from an order of the Circuit Court of Morgan County which permanently enjoined the appellants from selling alcoholic beverages on their property because such use violated a restrictive covenant prohibiting the sale of alcoholic beverages on the premises. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

I

Prior to 1955, L.B. Allemong, the original owner of the property in question, owned approximately 256 acres in Morgan County, West Virginia (hereinafter "the home place"). By deed dated March 22, 1955, he conveyed approximately three acres of this parcel to W.C. Yost, Jr., subject to the following restrictive covenant: "This conveyance is subject to the restriction that no alcoholic beverages of any kind shall be sold on said premises, and this covenant shall run with the land." From the aforementioned three-acre parcel, Donald Clayton, the successor in interest to W.C. Yost, Jr., conveyed approximately 1.006 acres to the appellants. The conveyance from Donald Clayton to the appellants was made subject to the restrictive covenant contained in the deed from Allemong to Yost.

L.B. Allemong died in 1958 and his widow, Hattie A. Allemong, executed a release of the restrictive covenant to Donald Clayton, as did James and Helen Allemong, two of the appellees herein. The release was signed by all the heirs of L.B. Allemong and Hattie Allemong who owned an interest in "the home place" except for Eileen L. Reeder. However, this release was ultimately withdrawn and subsequent conveyances of the parcel in question included the restriction prohibiting the sale of alcoholic beverages. A copy of the release was recorded in the Morgan County Clerk's office.

The appellants, Donald and Lillian Frendzel, are the owners of a convenience grocery store known as "Don & Lil's Market," which is situated on the parcel subject to the restrictive covenant. The appellees are James and Helen Allemong, owners of a portion of the home place; Ronald and Eileen Reeder, purchasers, along with the Allemongs, of a significant portion of the home place, the title to which has since been conveyed to others; and Vincent and Mary Howard, who are adjacent landowners. The Reeders have sold their interest in the property and presently own no land in the neighborhood of the parcel in question.

When the appellants purchased from Donald Clayton the tract of land on which their market sits, they were aware of the restriction prohibiting the sale of alcoholic beverages on the premises. The appellants subsequently applied to the State of West Virginia for a beer license which was granted and has been renewed every year since 1981. The appellants have engaged in retail sales of beer for off-premises consumption only; beer has never been sold or drunk over the counter or on the premises.

There are a number of sales outlets for beer within a three-mile vicinity north and south of the appellants' market, with two of the establishments as close as one-fourth of a mile from the appellants' business. The area immediately surrounding the 1.006 acre parcel in question is predominantly residential and agricultural.

The appellees sought permanent injunctive relief against the appellants to prohibit them from selling alcoholic beverages on the parcel of land that they had purchased. The trial court concluded that the restrictive covenant was reasonable and enjoined the appellants from selling beer on the premises.

[178 W.Va. 604] II

A preliminary issue which we must resolve is whether the appellees in the case

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before us, the plaintiffs below, had standing to seek injunctive relief which prohibited the appellants from selling alcoholic beverages at their convenience store.

Generally, a valid restrictive covenant may be enforced by one other than a party to the restrictive covenant provided that the parties to the deed in which the restrictive covenant originated intended that the restriction should benefit the land of the person claiming enforcement. Annotation, Comment Note--Who May Enforce Restrictive Covenant or Agreement as to Use of Real Property, 51 A.L.R.3d 556, § 3 (1973); 21 C.J.S. Covenants § 80 (1940); see also Palermo v. Allen, 91 Ariz. 57, 64, 369 P.2d 906, 911 (1962); Baker v. Seneca, 329 Mass. 736, 739, 110 N.E.2d 325, 327 (1953); Gauthier v. Larchmont, 30 A.D.2d 303, 304-06, 291 N.Y.S.2d 584, 586-87 (1968); Baker v. Alford, 482 S.W.2d 908, 909 (Tex.Civ.App.1972). Thus, the right to...