Anderson v. Lynch

• Decision Date: 11 May 1939
• Docket Number: 12684.
• Citation: 3 S.E.2d 85,188 Ga. 154
• Parties: ANDERSON et al. v. LYNCH et al.
• Court: Georgia Supreme Court

3 S.E.2d 85

188 Ga. 154

ANDERSON et al. v. LYNCH et al.

No. 12684.

Supreme Court of Georgia

May 11, 1939

Syllabus by the Court.

1. Where all of the lots in a subdivision were sold under covenants that they would be used for residential purposes only, and the county purchased or was about to purchase one of the lots for use as a public road, owners of other lots did not have any interest or ownership in the lot about to be thus used, so as to entitle them to damages or compensation because of such use.

2. If the covenants should be construed as intended to restrict the right of the county to acquire and use any of the property for the purpose of establishing a new public road, they would be contrary to public policy and void. A contract will be construed as made for a legal rather than for an illegal purpose, whenever it may reasonably be so interpreted. Upon application of this principle, the covenants involved in the instant case are construed as having no reference to the right of the county authorities to acquire and use any of the lots for the purpose of a public road, or to the right of any one to sell or dedicate his lot for that purpose.

3. Even if the owners of other lots might sustain some damage by the establishment of such new public road, since they own no property interest in the land about to be used for that purpose, any damage suffered by them would be merely consequential or incidental, and they would not be entitled to notice or other compliance with the law as to condemning property for such public purpose.

4. The authority of a county to lay out and establish a public road is not limited to an emergency, nor is it essential that there should be a public necessity; but it is sufficient if the road will be a public advantage or utility.

(a) The petition alleged 'that there is no emergency for the construction of said road,' but contained no allegation that the road would not be of public advantage. Accordingly upon a proper construction of the petition, it must be assumed that the road will be of some public advantage.

(b) The petition did not state a cause of action for injunction or other relief, and the court properly sustained the general demurrers and dismissed the suit.

Mrs Gertrude S. Anderson, F. A. Stone, A. M. Carlson, F. H Morgan, J. R. Henderson, and Mrs. Irene McMath, the owners of residential lots in a subdivision known as Garden Hills, filed a suit in equity against Henry Grady Lynch, who also owned a lot in this subdivision, and against Fulton County and the county commissioners, naming them, praying for injunction to prevent the defendants from violating stated covenants and building restrictions alleged to be applicable to all the lots in the subdivision, including the lot of Lynch, which, according to the petition, he has agreed to sell to Fulton County for use as a public road. The petition alleged that there were 200 or more other property owners similarly situated in the same subdivision, and prayed that the action be treated as a class suit, that others in like situation be allowed to intervene, for recovery against Henry Grady Lynch of $1,000 as attorney's fees, and for general relief as to all of the defendants. General and special demurrers were filed separately by the defendant Lynch and by Fulton County and the commissioners. After amendment of the petition, the court sustained the demurrers and dismissed the suit; and the plaintiffs excepted.

The petition as amended contained the following allegations: Lynch is the owner of a lot known as lot 14 in block E of Garden Hills subdivision, and situated on the north side of Brentwood Drive. Mrs. Anderson is the owner of a house and lot located on lot 15, adjacent to and immediately east of the property owned by Lynch. The lots of the other plaintiffs are situated near to the lot of Lynch, some on the same side of Brentwood Drive and others on the opposite or south side. Lynch holds under a deed which contains the following, among other covenants: '(2) No use to be made of said property, or any part thereof, which would constitute a nuisance, or injure the value of any of the neighboring lots * * *. (4) Said property shall not be used for store, cemetery, hospital or sanitorium purposes; and shall be used for residence purposes only * * *. (9) Grantor reserves the right to lay and maintain, or authorize the laying and maintaining, of any property improvements or public utilities on any lot or in any of the streets or alleys of the property known as 'Garden Hills,' without compensation to any lot-owner. (10) In the event of a violation of any of the above restrictions, the grantor, its successors or assigns, or any lot-owner in said Garden Hills, shall have the right to enforce a full compliance with same by legal proceedings, at the expense of the owner violating, or permitting the violation of any of said restrictions.' The plaintiffs and Lynch, as well as other owners of property in Garden Hills, acquired their properties from a common grantor, and the lots of all such owners were subject to the foregoing restrictions. The subdivision known as Garden Hills is a well-developed and exclusive residential community, in which more than 200 homes have been established upon the faith of such restrictions. Homes have been built upon each of the plaintiffs' lots. Lynch has conceived a plan and scheme to sell his lot to Fulton County for the purpose of enabling the county to build a highway approximately 40 feet wide and extending the entire length of the lot, so as to connect Brentwood Drive with lookout Place on the north. Any such use of the property will constitute a violation of the covenant as to use for residential purposes only, with resulting damage to the plaintiffs and to all other owners of property in the subdivision. In the construction of such a highway it will be necessary for the county to build a bridge over a portion of the lot purchased, and to cut down the grade of another portion, thus changing and destroying the natural beauty and topography of the lots adjacent thereto. The building of such a street or highway with such fills and cuts will especially damage the adjacent lot of Mrs. Anderson, and will destroy the privacy to the side and rear of her home. The resulting damage to her property will amount to more than $5,000.

It is alleged that wnen automobiles are traversing said new highway the headlights will be thrown directly into the front of two of the plaintiffs' homes, flooding them with light and destroying their privacy. For this and other reasons the damage to each of these plaintiffs would amount to at least $5,000. Three other plaintiffs would be damaged $2,500 each. Each of the defendants has been notified of the objections of the plaintiffs to the appropriation of the lot of Lynch for road or street purposes, notwithstanding which notice the county has begun clearing a right of way for construction of the road across said premises, and has had the engineering department of the county to make a survey therefor. There is no 'emergency for the construction of said road,' and if the acquiring of the property by Fulton County 'be construed as an act of taking said property under the power of eminent domain,' the county 'has not complied with the laws of the State of Georgia in connection with its right of eminent domain, and has not complied with chapters 36-2 to 36-6 and 36-10 of the Code of Georgia, in the following respects: (a) The county has not tendered or paid just and adequate compensation for the damages to petitioners and others similarly situated. (b) The * * * county has not given to petitioners and other similarly situated notice and an opportunity to present their claims for damages on account of a breach of the restrictive covenant. (c) The * * * county has not provided for a board of assessors, and hearings before same for the purpose of fixing and determining the damages that petitioners and others similarly situated have sustained and will sustain on account of a breach and a destruction of said restrictive covenant.'

In the amendment the plaintiffs alleged: Just north of the lot owned by Lynch, and in close proximity to the proposed new road, is a negro settlement of about 100 houses, with approximately 500 negro inhabitants; and if the road should be opened as proposed, it would give a direct route for these negro inhabitants into Garden Hills, which is an exclusively white community, thereby injuring and damaging the property of plaintiffs and others and making it less desirable for residential purposes. The plaintiffs and others purchased their properties with the streets and roads as they now exist, which is in accord with the plan of the original developer, Garden Hills Corporation, and there has been no direct and convenient way for these negro inhabitants to go into Garden Hills, and consequently there are now very few negroes passing through Garden Hills; but if the road is opened up across the lot of Lynch, it will enable these negro inhabitants to go into this vicinity over the proposed road by going only a few hundred feet. The plaintiffs are without an adequate and complete remedy at law, and only through the intervention of a court of equity can they have a full, adequate, and complete remedy. By means of this proceeding by plaintiffs as a class, a multiplicity of suits will be avoided.

G. B. Tidwell, C. O. Johnson, and Herbert J. Haas, all of Atlanta, for plaintiffs in error.

J. C. Savage, Bond Almand, and Walter C. Hendrix, all of Atlanta, for defendants in error.

BELL, Justice (after stating the foregoing facts).

1. One of the questions for decision is whether the restrictive covenants contained in the deed to Lynch created, or conveyed to the...