Bauby v. Krasow

Decision Date12 December 1927
CourtConnecticut Supreme Court

Appeal from District Court, New Haven County; Walter D. Makepeace Judge.

Action by Frederick C. Bauby and others against Annie Krasow and others to restrain defendants from building a three-family dwelling house on a lot in Waterbury, in violation of a restrictive covenant claimed by plaintiffs as owners of adjacent property. Judgment for defendants, and plaintiffs appeal. Error, and case remanded for assessment of damages.

Foster J., dissenting.

Charles G. Root, of Waterbury, for appellants.

Walter E. Monagan and Maurice T. Healey, Jr., both of Waterbury, for appellees.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and FOSTER JJ.


Minnie J. Dalton owned two adjoining lots in Waterbury upon one of which stood a one-family dwelling house in which she lived. She conveyed the vacant lot to Catherine McCarthy by a warranty deed containing this clause:

" Grantee agrees that in the event she shall erect a house on said property that same will be a single family house."

Minnie Dalton continued to own and occupy this house until her death. Upon her death the administrator of her estate conveyed her house and lot to the plaintiff Bauby, who had actual knowledge of the restrictive covenant in her deed to Catherine McCarthy. Subsequently Catherine McCarthy conveyed the vacant lot to the defendant Annie Krasow by a deed warranting the same to be free of all incumbrances, but at the same time taking back from Annie Krasow an agreement whereby she agreed to save Catherine McCarthy harmless from any claim that might be made because of the restrictive covenant of which she had actual notice. Thereafter the defendant Annie Krasow commenced the construction of a three-family house upon her lot. The cellar of this house was completed and a portion of the frame up when this action was started and the house was completed before the case was tried.

The appeal from the refusal of the trial court to correct the finding is without merit. The motion to strike out the several paragraphs of the conclusions of the trial court is not the proper method of attacking the soundness of such conclusions. The other paragraphs of the finding which the appellant seeks to have stricken out were not found without evidence, and the paragraphs which the court was asked to add to the finding were either facts which were not admitted or undisputed, or were immaterial.

The trial court reached the conclusion that the clause in the deed from Minnie Dalton to Catherine McCarthy did not create an easement running with the land and was not binding upon the heirs and assigns of the grantee. The question whether such a covenant runs with the land is material in equity only on the question of notice. If it runs with the land, it binds the owner whether he had knowledge of it or not. If it does not run with the land, the owner is bound only if he has taken the land with notice of it. In Tulk v. Mackay, 2 Phil. Ch. 774, the leading case upon this question, the court said (page 777):

" The question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased."

The decisions proceed upon the principle of preventing one having knowledge of the just rights of another from defeating such rights, and not upon the theory that the covenants enforced create easements or are of a nature to run with the land. 2 Pomeroy, Eq. Juris (4th Ed.) § 689. Berry on Restrictions on Use of Real Property, 417; 1 Jones, Law of Real Property in Conveyancing, § 780; 2 Tiffany on Real Property (2d Ed.) § 394; 21 A.L.R. 1284; Whitney v. Union Ry. Co., 11 Gray, 359, 364, 71 Am.Dec. 715; Lewis Oyster Co. v. West, 93 Conn. 518, 107 A. 138.

The defendant Annie Krasow, when she bought this lot, had actual knowledge that her grantor, by a covenant in her title deed, had agreed not to build other than a one-family house upon the lot. She could not equitably refuse to perform this agreement if performance were sought by Minnie Dalton, the original covenantee.

The plaintiff Bauby is the successor in title of Minnie Dalton to the adjoining house lot which she retained when she conveyed the vacant lot by the deed containing the restrictive covenant. Whether he can enforce the covenant depends upon whether it was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant as expressed therein, read in the light of the circumstances attending the transaction and the object of the grant. 1 Jones, Law of Real Property in Conveyancing, § 798; 2 Tiffany, Real Property (2d Ed.) § 399; Berry on Restrictions on Use of Real Property, 417, 437; 21 A.L.R. 1282; Peck v. Conway, 119 Mass. 546; Beals v. Case, 138 Mass. 138; Baker v. Lunde, 96 Conn. 530, 114 A. 673.

The great majority of cases in which these questions arise are those where uniform restrictions are inserted in deeds given in pursuance of a general scheme for the improvement and development of a tract of land. In such cases, ordinarily the intent is easily ascertained by the application of the words of the deed to the surrounding circumstances. Where, as here, the owner of two adjacent lots conveys one with a restrictive covenant, retaining the other, the problem of ascertaining the intention of the parties as to the nature of the covenant is one the solution of which by the courts has been far from uniform, owing, doubtless, to the varying facts of the cases in which the question has arisen. Numerous cases involving this precise question are collected and analyzed in a note in 21 A.L.R. 1288. Upon the one hand, it is said that the law does not favor restrictions; that the burden is upon the plaintiff to prove that the covenant was imposed for the benefit of the land retained by the grantor, and not merely for his personal benefit; and that the mere fact that the grantor retained the adjacent lot does not establish his intention to benefit it. Lowell Inst. for Savings v. Lowell, 153 Mass. 532, 27 N.E. 518; Chesebro v. Moers, 233 N.Y. 75, 134 N.E. 842, 21 A.L.R. 1270; Sailer v. Podolski, 82 N.J. Eq. 459, 88 A. 967. On the other hand, it is said that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that,...

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