Austin v. Durbin
| Decision Date | 16 May 1974 |
| Docket Number | No. 1--173A8,1--173A8 |
| Parties | Barrett E. AUSTIN, II, Appellant (Defendant Below), v. Herbert C. DURBIN et al., Appellees (Plaintiffs Below). |
| Court | Indiana Appellate Court |
Naville, Crumbo & Leist, Herbert F. Naville, New Albany, for appellant.
Robert A. Kelso, New Albany, for appellees.
Defendant-appellant Austin appeals from a judgment permanently enjoining him from constructing a roadway over a lot which he purchased in a restricted subdivision.
Austin presents four alleged errors for review:
(1) Whether the trial court erred in granting an injunction which purportedly exceeded the prayer for relief.
(2) Whether the trial court erred in failing to find that plaintiffs-appellees Durbin et al., were estopped from seeking an injunction due to prior acquiescence in the use of said lot as ingress and egress to an adjoining tract.
(3) Whether the roadway contemplated by Austin was prohibited by the applicable restrictions.
(4) Whether Austin was entitled to a new trial because of newly discovered evidence.
The basic question raised in this appeal concerns the propriety of the court in enjoining the construction and use of a roadway across a lot which had been restricted to residential use. Resolution of this issue requires a recitation of some of the surrounding pertinent facts.
Appellees, home owners in Altawood Subdivision in Floyd County, sought to enjoin Austin, a developer, from constructing a 50 foot roadway through Lot No. 33 in the subdivision. Austin had purchased Lot No. 33, together with 28.5 acres adjoining it, from the New Albany Girl Scout Council. The Scouts had used the 28.5 acre tract as a camp ground, and Lot 33 for ingress and egress thereto on various occasions for a period of 18 years.
All lots in Altawood Subdivision, including Lot 33, were subject to a number of restrictions including inter alia, prohibitions against erection of structures other than single family dwellings and provisions establishing set-back lines and easement strips for utilities. It was further provided that: 'All lots in the tract shall be known and described as residential lots.'
Lot No. 33 was conveyed to Austin subject to the following additional restrictions:
'Lot No. 33, Plat No. 631, of the Floyd County, Indiana records, above described, is conveyed subject to any and all casements of record affecting the same and is also conveyed subject to any and all restrictions and protective covenants pertaining to said Plat No. 631 of the Floyd County, Indiana records, and all of the above described real estate is conveyed subject to any and all easements and any and all valid and enforceable restrictions and protective covenants of record affecting the same.'
Austin's central complaint is addressed to the granting of the permanent injunction by the court, which ordered:
'That the defendant Barrett E. Austin II, and his employees, agents and all persons acting by or under his authority and direction, or in his behalf are perpetually enjoined from constructing a roadway across or over any portion of Lot No. 33 in Plat No. 631 known as Altawood Subdivision, Floyd County, Indiana, or from using said lot for any purpose except residential.'
Austin testified that he had sub-divided the 28.5 acre tract into 16 proposed residential lots and needed the roadway across Lot 33 for ingress and egress, contending there was no other feasible entrance into his land. He proposed to link the 50 foot roadway across the lot to Hill Top Road in Altawood subdivision. The evidence revealed that Hill Top Road was a circular end or cul-de-sac street. Appellee lot owners maintain that they purchased their homes in this location because of the relative privacy and that permitting the 50 foot roadway across Lot 33 would not only change the character of the lot but would also transform a relatively quiet street into a more heavily travelled thoroughfare thereby changing the character of the neighborhood.
Appellee lot owners also remind us that at the time of trial Austin had not as yet imposed any formal restrictions upon the use of his land, retaining the option of changing his development plans at any time.
Appellant first contends that the court's judgment, interpreted literally, would prohibit him from even constructing a driveway into his own residence, should he elect to build one on Lot 33, and that therefore the injunction exceeds the prayer for relief. We believe that this construction is strained. The court, in enjoining the location of a roadway and in prohibiting the use of the lot for any other purpose except residential, did not prohibit the future construction of a driveway to a residence.
The words 'roadway' and 'driveway' are not synonymous. The term 'roadway' is ordinarily used to designate a strip of land over which a road is constructed. Lake Garda Imp. Ass'n v. Battistoni (1971), 160 Conn. 503, 280 A.2d 877; Franck Bros., Inc. v. Rose (Mo. 1957), 301 S.W.2d 806.
On the other hand, a 'driveway' has been described as a path leading from a house or garage to a street used especially by automobiles. Dolske v. Gormley (1962), 58 Cal.2d 513, 25 Cal.Rptr. 270, 375 P.2d 174.
We therefore conclude that the injunction in the case at bar does not prohibit the construction and use of a driveway in connection with a residence. A driveway from either a house or a garage to an adjacent street, could reasonably be considered incidental to the residential purpose.
The evidence reveals that for some 18 years prior to trial the Girl Scouts had crossed Lot 33 in gaining access to their camp ground. This occurred two or three times a year.
Austin argues that since the surrounding lot owners acquiesced in this practice, they are now estopped from enjoining Austin. He reasons that he was only enlarging the existing right of way used by the Girl Scouts.
Appellant is correct in his argument that the right to enforce building restrictions may be lost by laches and acquiescence to prior violations. Thompson on Real Property (1962 Repl.Vol. 7), § 3173, p. 197. Also see, Schwartz v. Holycross (1925), 83 Ind.App. 658, 149 N.E. 699. However, our examination of the authorities leads us to conclude that the force of these equitable principles depends upon the factual situation involved in the particular case.
In the case at bar, one of appellee lot owners testified that the reasons for not suing the owners of Lot 33 for using said lot as a roadway were (1) the owner was the Girl Scouts and (2) they used it only a few times a year.
Considering the abundance of other prospective defendants who may richly deserve to be sued, we can understand appellees' reluctance to single out the Girl Scouts as a prime target for litigation.
Of greater legal import, however, is the obvious difference between a 50 foot roadway improved for general vehicular travel and opened to the general public as compared to an occasional use by various bands of Girl Scouts.
Appellant cites Wischmeyer v. Finch (1952), 231 Ind. 282, 107 N.E.2d 661, wherein it was held that injunctive relief will be denied in cases involving enforcement of restrictions where complainant has substantially violated the restriction or has been guilty of laches, waiver or acquiescence. In the instant case there is no evidence that the complaining lot owners themselves have violated any restrictions. Neither can their acquiescence in the occasional use of Lot 33 as a means of access to a Girl Scout camp ground, necessarily bar appellees from objecting to the construction and use of a public roadway, improved to county specifications and opened to traffic daily by all members of the public.
We conclude that the trial court was justified in finding that appellees were not barred under the doctrine of laches.
Austin next contends that the applicable restrictions do not expressly prohibit the building of a roadway, and that the testriction that the property be used only for residential purposes is not violated by its use as a means of access to an adjoining tract, citing Bove v. Giebel (1959), 169 Ohio St. 325, 159 N.E.2d 425.
Appellees respond by contending that the clearly expressed intent of the restriction was to limit the...
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