Bennett v. Consolidated Realty Co.

• Decision Date: 11 December 1928
• Citation: 11 S.W.2d 910,226 Ky. 747
• Parties: BENNETT v. CONSOLIDATED REALTY CO.
• Court: Kentucky Court of Appeals

11 S.W.2d 910

226 Ky. 747

BENNETT v. CONSOLIDATED REALTY CO.

Court of Appeals of Kentucky

December 11, 1928

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by the Consolidated Realty Company against J. G. Bennett. Judgment for plaintiff, and defendant appeals. Affirmed.

Hubbard & Hubbard, of Louisville, for appellant.

David R. Castleman, of Louisville, for appellee.

HOBSON C.

Some years ago J. G. Bennett opened a restaurant and dance hall known as Inn Logola about one mile east of the city limits of Louisville. After this the Consolidated Realty Company purchased a tract of land adjacent to his property, and opened a subdivision known as Wellington, cutting it up into lots. Bennett purchased from the company lot 1 and from its vendees lots 2 and 3. These three lots lay adjoining, and were separated from Bennett's property by an alley. Inn Logola was much attended by people coming in cars, and, even before Bennett purchased lot 1, his patrons were using for parking purposes this ground when necessary. His original lot contained only space enough for 10 or 12 cars. After Bennett acquired lots 1, 2, and 3, he covered the rear of the lots with cinders, and his patrons used it for parking purposes often as many as 100 cars were there. He had dances in the evening, and these lasted sometimes until 2 or 3 o'clock in the morning. Bennett charged nothing for the parking. He did no business on these lots, except to allow them to be used by his patrons. The only charges he made were for what was received in the house. The deed to him for the lots contained this clause:

"No trade or business whatever shall be permitted or maintained on this property. This is not to include doctors or dentists who may maintain an office in their residence."

The company brought this suit against Bennett to enjoin him from using lots 1, 2, and 3 as a parking space for the automobiles of patrons of Inn Logola or for any other purpose incidental to or associated with the operation of the roadhouse. The issues were made up, proof was taken, and on final hearing the circuit court granted the injunction as prayed. Bennett appeals.

The use of the lots by Bennett's patrons was plainly a use for business purposes. It was necessary to have a parking place for these automobiles. The parking place was an incident to the roadhouse, without which the roadhouse could not have been successfully operated under the circumstances. Bennett was carrying on the business of operating the roadhouse; and in providing parking places for his patrons, he was simply performing an incident of that business. While such provisions in deeds are not construed to create restrictions beyond the fair and natural meaning of the words used, read in the light of the circumstances under which they were used they will be enforced according to their fair and natural meaning, in the absence of fraud or mutual mistake. To hold that no trade or business was permitted on these lots would be to refuse to enforce the provision according to the plain meaning of the common words of everyday speech in which it is expressed; for such a use as Bennett was making of the property would be especially objectionable in a residential section, and the restriction was inserted to protect the...