Bachman v. Colpaert Realty Corp., 14956.

CourtCourt of Appeals of Indiana
Citation101 Ind.App. 306,194 N.E. 783
Docket NumberNo. 14956.,14956.
PartiesBACHMAN et ux. v. COLPAERT REALTY CORPORATION et al.
Decision Date29 March 1935

OPINION TEXT STARTS HERE

Appeal from St. Joseph Circuit Court; Iden S. Romig, Special Judge.

Suits by the Colpaert Realty Corporation and by Hubert Weaver and others against George T. Bachman and wife, as consolidated. From a judgment for plaintiffs, defendants appeal.

Affirmed.Clifford V. DuComb and Shively & Arnold, all of South Bend, for appellants.

Jones, Obenchain & Butler, of South Bend, for appellees.

DUDINE, Presiding Judge.

This is a consolidated cause instituted by appellees against appellants, as owners of lot No. 186 in “Colonial Gardens,” an addition in the city of South Bend, Ind., seeking to enjoin them from using said real estate in a manner contrary to restrictive covenants contained in a deed of conveyance of said real estate to appellants' predecessor in title, which deed of conveyance will hereinafter be referred to where the word “deed” is used, unless otherwise indicated.

The original complaint was filed by appellee Colpaert Realty Corporation, which corporation originally owned and platted said addition, and, at the time the suit was commenced, owned in fee simple 84 of the total of 430 lots in said addition, and held valuable interests in 96 other of said lots. This complaint alleged that appellants were violating said restrictive covenants in certain ways and manners, and it prayed a restraining order restraining appellants from violating said restrictive covenants in the ways and manners alleged in the complaint, and that upon a final hearing appellants be perpetually enjoined from so violating said restrictive covenants.

A restraining order was issued. Thereafter the remaining appellees, owners in fee simple of certain lots in said addition, filed their joint complaint. Separate answers in general denial were filed by appellants to each of said complaints, and thereafter the causes were consolidated.

The consolidated cause was submitted to the court for trial without the intervention of a jury, and the court, upon request, made a special finding of facts, of which we quote or state the substance thereof as follows:

The corporate appellee entered into a contract for the purchase of certain real estate, which it platted and designated as Colonial Gardens, an addition to the city of South Bend, and duly recorded said plat on the 19th day of July, 1922.

The following is a true copy of so much of said plat as is pertinent to this appeal:

“The corporate plaintiff *** acquired the land comprised in said plat for development as a restricted residential sub-division, and subsequent to the recording of said plat acquired fee simple title to all the lots thereindescribed. Prior to January 2, 1925, corporate plaintiff had adopted a definite and general plan of development for the purpose of making the same a desirable residential area. As a part of said plan lots one to four inclusive, and eighty-nine to ninety-five inclusive were set aside and designated for commercial purposes, and all other lots, except as herein otherwise found, in said subdivision, were set aside and designated to be sold under *** restrictions *** (which restrictions were to be similar to the restrictions contained in said deed). Of such four hundred and thirty lots (in the addition), two hundred and fifty have been conveyed by the corporate plaintiff by warranty deeds, and ninety-six of said lots are held by purchasers under land contract executed by the corporate plaintiff, and among said ninetysix lots is lot number one hundred and eighty-four. The corporate plaintiff is the owner in fee simple of *** eighty-four of said lots among which are lots two hundred and seventy-one and three hundred and sixty-three. *** As a part of said plan, the minimum cost of dwellings was graduated from five thousand ($5,000.00) dollars on Mishawaka Avenue to two thousand ($2,000.00) dollars along the North part of the plat.

“More than three hundred and seventy-five dwellings are now in said area; no buildings have been erected on the lots in said subdivision excepting lots one to four inclusive and eighty-nine to ninety-six inclusive, excepting dwellings and appurtenant buildings, such as private garages other than asset out in these findings.”

Lots numbered 182 to 184, inclusive, 271 to 276, inclusive, 361 to 372, inclusive, are now occupied by dwelling houses conforming to the restrictions contained in said deed.

On January 2, 1925, the corporate plaintiff executed to appellants' predecessor in title said deed for Lot No. 186 in said addition. Said deed contained the following provisions:

“This conveyance is made upon the following conditions, restrictions and reservations, all of which shall be and remain in full force and effect for a period of 25 years from date, to-wit:

“1. That the above grantees, their heirs or assigns shall not cause to be erected or placed an said lot any dwelling of the value of less than five thousand dollars.

“2. That the grantees, their heirs, administrators or assigns shall not use or permit to be used any building which may be erected on said premises for the purpose of a grocery store or any business or trade.

“3. That there shall be maintained a lawn space between the front line of said premises and the front foundation wall of any main building to be erected thereon of not less than forty feet from the nearest point of said foundation to said front property line and that no dwelling shall be erected less than five feet from either side of said lot.

“4. That any and all barns and outbuildings and garages when detached from dwelling must be erected on the rear of the lot and shall be built at the same time or after the residence has been erected on the front of said lot.

“5. That no building of any kind or description shall be moved on said premises. The grantors reserve the right to enforce the provisions of these restrictions and reservations or to prevent their violation by injunction or other legal proceedings and the failure to enforce the provisions of these restrictions and reservations herein set forth shall in no event be deemed a waiver of the right to do so thereunder.”

This deed was duly recorded January 19, 1925.

Appellants as husband and wife acquired title to said real estate on March 18, 1931, by warranty deed which was in the usual form, except that it provided that the conveyance was made “subject to all building restrictions of record.”

Prior to February 1, 1932, appellants built a driveway on the front of said lot and installed some oil pipes. On or about June 2, 1932, without the consent or knowledge of appellees, they began the construction of a filling station on said lot, the estimated cost of which station was $550. On June 4, 1932, they received a written notice from corporate appellee, ordering them to desist from such construction, but, upon receiving such notice, appellants put more men to work on the project, and on June 6, 1932, when the restraining order was issued, the side walls of the filling station were up and the skeleton of the roof was placed and one pump was installed.

“The building being erected by the defendants is not new or of new materials, but the defendants are using a fabricated steel and glass building which was formerly used on Sample Street in the city of South Bend as a filling station and which had been dismantled and had been in storage for some time prior to the acquisition of the same by the defendants.”

“The erection of said filling station as herein set forth and the use of said premises of said lot one hundred and eighty-six in the manner intended by the defendants, will render the remaining lots in said subdivision other than lots 1 to 4 and 89 to 96 less desirable for residential purposes and will cause great and irreparable injury and pecuniary loss to the owners of said land including the plaintiffs.”

The development of said subdivision has been in substantial conformity with the plan therefor, but there have been some exceptions (which exceptions were stated in the courts finding).

“There has been no abandonment of the general plan upon which said subdivision was developed and the same is today a high grade residential area.”

“The restrictions contained *** (in said deed) were intended by the corporate plaintiff for the benefit of all the lots in Colonial Gardens Addition.”

By a zoning ordinance of the city of South Bend adopted in 1923 and amended in 1929, lots 181 to 186, inclusive, were classified as part of a Commercial District in which buildings for commercial uses might be built.

The individual appellees reside upon and are the owners of lots numbered 273, 274, 275, 276, 367, and 369, respectively.

The court stated conclusions of law. The parts thereof which are pertinent to this appeal are as follows:

“2. The plaintiffs are entitled to an injunction against the defendants, and each of them, restraining them, and each of them, until January 2nd, 1950:

(a) From erecting or constructing or placing on Lot 186 Colonial Gardens, an Addition to the City of South Bend, a gasoline filling station.

(b) From using said lot, or any building on said lot thereon for the sale of gasoline, motor oil, automobile accessories and from using the same in the servicing of motor vehicles.

(c) From committing any act on said premises in violation of the restrictions contained in the deed from the corporate plaintiff to John H. Wolfe, et al., and recorded in Deed Record No. 186, Page 102 of the deed records of St. Joseph County, Indiana.

“3. The plaintiffs are entitled to the order of this court commanding the defendants, and each of them, forthwith to remove from said Lot Numbered One Hundred Eighty-six (186) the filling station and appurtenant structure now thereon. ***”

Appellants took exceptions to each conclusion of law. Thereupon the court rendered judgment in accordance with the conclusions of law, and...

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