Ault v. Shipley

• Decision Date: 07 March 1949
• Citation: Ault v. Shipley, 189 Va. 69, 52 S.E.2d 56 (1949)
• Court: Virginia Supreme Court
• Parties: AULT et al. v. SHIPLEY et al.

52 S.E.2d 56

189 Va. 69

AULT et al.

v.SHIPLEY et al.

Supreme Court of Appeals of Virginia.

March 7, 1949.

As Amended on Rehearing April 19, 1949.

Appeal from Circuit Court of City of Bristol; Walter H. Robertson, Judge.

Suit by F. C. Ault and others against Margaret V. Shipley and others to restrain defendants from violating certain building restrictions contained in deed affecting a real estate development. From the decree, complainants appeal.

Decree reversed, and decree ordered entered extending and continuing the injunction.

Before GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Jones, Woodward & Miles, of Bristol, for appellants.

Thomas C. Phillips, of Abingdon, and Stuart Carter and Love B. Rouse, both of Bristol, for appellees.

GREGORY, Justice.

The appellants, who were the complainants in the trial court, filed their bill praying for an injunction to restrain the defendants, appellees here, from violating a certain building restriction. The court was of the opinion that the conditions had so changed in this particular locality that it would have been inequitable to have perpetuated the temporary injunction which had been granted, and the bill was dismissed.

The appellants each own one or more lots in a real estate development in Bristol, known as Virginia Heights, and the defendant, Margaret V. Shipley, owns all of block 5, which includes lots 1 to 9, inclusive, in the same development. She considers her husband, the defendant, E. R. Shipley, as joint owner of the lots but he is not the record owner. He manages her interests.

Elma Shipley, the daughter of Margaret V. and E. R. Shipley, took title to a tract of 266 acres from Elizabeth Read in 1934, and the defendants then began the development of the tract as a residential subdivision known as Virginia Heights.

In 1936, Elma Shipley.conveyed the entire tract to Shipley Land Company, Incorporated, whose stock, in the main, has been and is owned by the defendants and their daughter, Elma; E. R. Shipley being the president, Margaret V. Shipley, vice president, and Elma Shipley, secretary. A plat of the Virginia Heights development is filed as an exhibit in the cause.

The purpose of the defendants, Mr. and Mrs. Shipley, was to have a strictly residential section development, and they caused to be written into the deed from Mrs. Read to Elma Shipley, in 1934, these covenants: "It is further agreed that this conveyance is made upon the following conditions and building restrictions and which are hereby made covenants running with the land, and binding upon the purchaser, her heirs and assigns, for a period of twenty years from this day:

"1st: Said property is not to be sold or leased to any person of African descent.

"2nd: No dwelling house erected on any lot fronting on Lee Highway is to cost less than $3,500.00. No dwelling house fronting on any street other than Lee Highway is to cost less than $1,500.00.

"3rd: No dwelling house, private garage, or other out building is to be built closer than 75 feet to the street line in front of same.

"4th: Not more than one dwelling house is to be built on any one lot, but all necessary and proper out houses may be built in connection with such dwelling house.

"5th: No store house, garage, filling station, or any other building shall be erected on any of said lots, except a dwelling house, together with the necessary and proper out buildings, and embracing among them the right to a garage for private use.

"The foregoing conditions and building restrictions are to be embraced in all deeds made by said second party to platted lots in said Read Farm Addition."

All of the deeds to the various purchasers have contained these same restrictions. The defendants have advertised the tract as a residential section, and there were at the time of the suit from 75 to 100 residences in this development, the values of which range from $6,000 to $40,000. From 25 to 40 per cent, of these homes exceed $15,000 in value. The appellants purchased their respective lots in the addition in reliance upon the building restrictions.

The defendant, Margaret V. Shipley, secured the title to block 5, including lots 1 to 9, inclusive, in this addition, and the conveyance to her was made subject to the restrictions. Her immediate predecessor in title to block 5 was her son, Garland Shipley, and he had received the title to these lots subject to the same restrictions.

This entire tract adjoined the limits of the city of Bristol, and in 1942, when the city limits were extended, it was brought into the city. The city of Bristol then passed a zoning ordinance in which was designated an area for a neighborhood shopping center. Block 5, including the particular lots in question, lay within that area.

There are no buildings other than dwellings within the development. There is one residence in which an antique fur-niture business is conducted. In another residence candy is being manufactured in the basement, and in still another residence the defendants conduct their real estate business.

Outside the lines of the development are a tabernacle, three filling stations, a repair shop, two stores, a small restaurant, and two tourist cabins. Some distance away, and across the Norfolk and Western Railway tracks, there was erected a few years ago the Monroe Calculating Machine Company's plant. This is a large plant and employs some 500 people.

In order to obtain access to the Monroe plant from the Lee highway, Margaret V. Shipley donated a right of way 70 feet in width from the Lee highway through her property, block 5, to the railway right of way, and an underpass is being constructed under the tracks. It is contemplated that this right of way and the underpass will become a portion of an outer loop drive which will allow traffic to circle around the city of Bristol instead of going through the business section.

Block 5 is lowland, lying lower than the highway, and upon it the defendants have begun the construction of a building to be used as a shopping center on the corner of the newly donated land, which will be known as Valley Drive, and the State highway. In this building it is proposed that a super-market, a drug store, a filling station, and other shops will be located, and for its erection the defendants secured a building permit from the city of Bristol.

At the time, however, and before they began the construction, they had full knowledge of the building restrictions in the deeds, and they consulted no attorney as to their rights and duties. The architect, before work was begun, called their attenttion to the building restrictions, and suggested that they first secure the consent of the property owners to the construction of the building but they did not follow his suggestion. When the temporary injunction was granted the defendants had expended some eight or nine thousand dollars up to that time in labor and materials on the grounds.

The Lee highway, on which the shopping center will border, is a heavily traveled one. It is estimated that 500 cars per hour pass daily. It carries additional routes numbers 11, 58, and 19, which converge at Abingdon and proceed westwardly by the property in question. It is also estimated that one-half to two-thirds of the employees of the Monroe plant will pass the shopping center daily. The foregoing facts are not in serious dispute.

As already indicated, the trial court granted a temporary injunction restraining the defendants from further work on the building, but after a hearing upon the evidence it dissolved the injunction and dismissed the bill. The court was of the opinion that conditions had so changed in the area as to make it inequitable to enforce the restrictions; that the complainants would not suffer irreparable damage by reason of the defendants' violation of the covenants; that the defendants would be seriously damaged by enforcing the covenants; that the complainants should be left to their remedy at law for damages, and lastly, that to enforce the covenants would nullify the zoning ordinance of the city of Bristol.

We will discuss the last proposition first. In Virginia there is no case which affords us any direct authority on the question. Clay v. Landreth, 1948, 187 Va. 169, 45 S.E.2d 875, 175 A.L.R. 1047, is not in point. Here the restrictive covenants began with the deed of August 27, 1934, and were still in force and effect both when the development became a part of the city of Bristol in 1942, and also when the zoning ordinance was later adopted by the city permitting certain business enterprises in block 5.

In other jurisdictions the courts are in accord, to the effect that a zoning law cannot constitutionally relieve land within the district covered by it from lawful restrictive covenants affecting its use for business purposes. 14 Am.Jur, Covenants, Conditions and Restrictions, § 299; Strauss v. Ginsberg, 218 Minn. 57, 15 N.W.2d 130, 155 A.L.R. 1000; Magnolia Petroleum Co. v. Drauver, 183 Okl. 579, 83 P.2d 840, 119 A.L.R. 1112; Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A.L.R. 837; Vorenberg v. Bunnell, 257 Mass. 399, 153 N.E. 884, 48 A.L.R. 1431; Finn v. Emmaus Evangelical Lutheran Church, 329 Ill.App. 343, 68 N.E.2d 541, and annotations in 48 A.L.R. 1437, and 54 A.L.R. 843.

In Ludgate v. Somerville, supra ...