Baker v. Smith, 47826

• Decision Date: 08 May 1951
• Docket Number: No. 47826,47826
• Citation: 242 Iowa 606,47 N.W.2d 810
• Parties: BAKER et ux. v. SMITH et al.
• Court: Iowa Supreme Court

Page 810

47 N.W.2d 810

242 Iowa 606

BAKER et ux. v. SMITH et al.

No. 47826.

Supreme Court of Iowa.

May 8, 1951.

Owen Cunningham and Vincent M. Hanrahan, of Des Moines, for appellants.

Emmert, James, Needham & Lindgren, of Des Moines, for appellees.

OLIVER, Justice.

Plaintiffs own and occupy part of a lot in Gil-Mar Park, an addition to Des Moines. Defendants own adjacent lots in said addition. This is a high-class residential addition platted in 1910 and containing one hundred forty seven lots, almost all of which are occupied by houses about thirty five or forty years old but apparently in good condition. Each lot had been conveyed by the owners of the plat subject to uniform restrictions and covenants running with the land, as follows:

'First: The said premises shall (if occupied) be used for residence purposes exclusively and for no other purpose whatever, unless three-fourths of the owners of the property within a radius of three hundred feet of said lot or lots shall consent in writing that it be used for other legitimate purposes.

'Second: The front line of any residence or dwelling house, excluding porch, which shall at any time be erected on the lots hereby conveyed, shall be ninety feet from the street line on 42nd st., 55 feet on Harwood Drive and 50 ft. from Ingersoll Ave. of such lot and no barn or garage shall be built on said lot nearer than 160 feet from the street line on 42nd st. 90 ft. on Harwood Drive and 90 ft. on Ingersoll Ave. of said lots, and no trees or shrubbery shall be planted in parking.

'Third: No residence or dwelling house shall be erected on said lot or lots hereby conveyed, at any time, costing less than $5,000 ($4,000), exclusive of other buildings and improvements on said lot or lots.'

The remaining terms stipulate against illegal use, and provide for injunctive relief and enforcement, and that the restrictions shall be deemed covenants running with the land.

Defendants' lots are at the extreme southeast corner of the addition. Upon them are a large house and a private garage. The property is bordered by streets on three sides. One side of it faces south on Ingersoll Avenue which runs east and west, the opposite side faces Harwood Drive which runs southeast. The east end of the property faces Forty-second Street. Defendants secured this property in 1944 and have since lived in it. They propose to erect thereon an apartment building. Contending this would violate the restrictive covenants running with the land plaintiffs instituted this action for declaratory judgment and injunction. Defendants by cross-action sought to have the set-back and other provisions in the restrictive covenants adjudicated to be no longer effective. Upon trial the court enjoined the erection of the apartment building and dismissed with prejudice defendants' counterclaim. Defendants have appealed.

I. Throughout their argument plaintiffs point out that the restrictions in this case were part of a general plan for the benefit of all the property in the plat, see 14 Am.Jur. 613, 26 C.J.S., Deeds, § 167, p. 548, as distinguished from what plaintiffs refer to as personal transaction cases in which the use of one or two lots is restricted for the benefit of one or several lots only. Plaintiffs assert these are two classes of cases, each of which is governed by different legal principles so that the restriction 'for residence purposes exclusively' has one meaning in one class of cases and a different meaning in the other class. This contention is without merit. There is no valid reason for any such distinction and no decision called to our attention recognizes it. Anderson v. Henslee, 226 Ky. 465, 11 S.W.2d 154, 157, quotes from Clark v. Martin, 49 Pa. 289, as follows:

'It is not because a plan is deranged that the court interferes, but because rights are invaded, or about to be; and this fact may exist in a plan of two lots, as well as in one of 200. The plan often furnishes the proof of the terms on which sales were made; but the fact of the alleged terms is as effective when proved by a single deed as when provided by a plan.'

II. Over defendants' objections, plaintiffs offered expert testimony by several realtors that in Des Moines the meaning of the term 'for residence purposes' in a restrictive covenant was and is 'single family residences.' In turn defendants offered evidence to the contrary. None of this evidence was admissible. The words are not technical, or ambiguous. They are and have been in common use throughout the country and should be taken in their ordinary meaning. Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556, 557, 21 L.R.A. 391; Johnson v. Jones, 244 Pa. 386, 90 A. 649, 650, 52 L.R.A.,N.S., 325. Their construction is a matter of law for the court. Roberts v. Congregation Shaarey Zedek, 242 Mich. 381, 218 N.W. 662.

III. The trial court construed the restriction in the deeds 'for residence purposes exclusively', to mean, 'for single family residence purposes exclusively.' This construction was based in part upon the express terms and provisions of the restrictions in the deeds. We hold the language of the restrictions does not warrant this construction. Although this court has not determined the question it is the weight of authority that restrictions built around the terms 'residence' or 'residential purposes', without more, merely limit the use of the property to living purposes as distinguished from business or commercial purposes and do not exclude apartment houses. Jernigan v. Capps, 187 Va. 73, 45 S.E.2d 886, 175 A.L.R. 1182; Virgin v. Garrett, 233 Ala. 34, 169 So. 711; Yorkway Apartments v. Dundalk Co., 180 Md. 647, 26 A.2d 398; Hamm v. Wilson, 169 Ga. 570, 151 S.E. 11, 12.

In the following decisions the restriction was for 'residence purposes only':

Hunt v. Held, 90 Ohio St. 280, 107 N.E. 765, L.R.A.1915D, 543, Ann.Cas.1916C, 1051; Lewenstein v. Brown, 200 Ga. 433, 37 S.E.2d 332, 335; Miller v. Ettinger, 235 Mich. 527, 209 N.W. 568; McMurtry v. Phillips Inv. Co., 102 Ky. 308, 45 S.W. 96, 40 L.R.A. 489. An annotation in 14 A.L.R.2d 1376, 1403, states courts have consistently followed the foregoing rule and cites many decisions. See also 14 Am.Jur. 631, Covenants, Conditions and Restrictions, § 245; Annotation 175 A.L.R. 1191, 1199.

Plaintiffs contend the reference to 'residence or dwelling house' in the Second and Third restrictions supports the construction announced by the trial court. This contention assumes the two words, separated by the disjunctive 'or' are used synonymously. We need not determine whether the assumption is correct. In 14 A.L.R.2d 1381 and 1384, the author of the annotation states, with the exception of Michigan, the courts have generally held a simple restriction to a 'dwelling' or 'dwelling house' does not bar the erection or use of an apartment house. Among authorities cited, 14 A.L.R.2d 1384, are:

Reformed Protestant Dutch Church v. Madison Ave. Bldg. Co., 214 N.Y. 268, 108 N.E. 444, L.R.A.1914F, 651; De Laney v. Van Ness, 193 N.C. 721, 138 S.E. 28, 57 A.L.R. 238; Johnson v. Jones, 244 Pa. 386, 90 A. 649, 52 L.R.A.,N.S., 325. In Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556, 557, 21 L.R.A. 391, the language 'only a single dwelling' was held...