Berger v. Van Sweringen Co.

• Decision Date: 20 April 1966
• Docket Number: No. 39180,39180
• Citation: 6 Ohio St.2d 100,35 O.O.2d 127,216 N.E.2d 54
• Parties: , 35 O.O.2d 127 BERGER et al., Appellees, v. The VAN SWERINGEN CO. et al., Appellants.
• Court: Ohio Supreme Court

Page 100

6 Ohio St.2d 100

216 N.E.2d 54, 35 O.O.2d 127

BERGER et al., Appellees, v. The VAN SWERINGEN CO. et al., Appellants.

No. 39180.

Supreme Court of Ohio.

April 20, 1966.

Syllabus by the Court

Where it is shown by competent evidence that restrictive covenants sought to be cancelled were imposed by a developer of land upon the property of an owner for the benefit of other property owners, in order to effect a general building scheme or plan, the intended beneficiaries may maintain an action for the enforcement of such restrictive covenants against the developer and the owner seeking cancellation of the restrictive covenants upon his property.

Plaintiffs, homeowners in the village of Beachwood (now a city), brought suit on behalf of themselves and others similarly situated seeking a permanent injunction against the use by defendants Levin and Visconsi of an 80-acre parcel of land owned by them, for any purpose other than single-family residences. Plaintiffs ask also for a judgment declaring the rights of the parties.

The property is located in Beachwood in an exclusive residential neighborhood, in which are located homes valued at from $40,000 to $90,000. This parcel of land is bounded on the east by Ohio State Route No. 1, a four-lane interstate highway, on the north by Shaker Boulevard, a four-lane divided highway, on the west by Richmond Road, a 100-foot roadway, and on the south by South Woodland Road, also a 100-foot roadway.

The Council of the village of Beachwood, upon application by the defendants Levin and Visconsi, rezoned this parcel from a residential classification to a shopping-center classification.

The validity of this change in zoning classification was before this court in Willott v. Village of Beachwood, 175 Ohio St. 557, 197 N.E.2d 201.

The questions presented by this appeal were not decided by this court in that case.

The property is restricted to residential use, except for a certain small parcel. These restrictions were imposed by the Van Sweringen Company, which developed the whole area originally.

In 1959, the Van Sweringen Foundation, a corporation not for profit, was organized for the purpose of acquiring, owning and holding substantially all the stock of the Van Sweringen Company. This corporation was to be operated exclusively for the benefit of the communities of Shaker Heights, Beachwood and Pepper Pike. The trustees of the foundation are the mayors of the respective communities or their appointees. The directors of the company are elected by the trustees of the foundation.

In January 1960, the board of directors adopted a resolution of intent to change the restrictions on the 80-acre parcel with which we are concerned in this case, if and when Beachwood rezoned such parcel to permit it to be used for commercial purposes. Shortly thereafter, the case of Risman v. Van Sweringen Co. was instituted in the Cuyahoga County Court of Common Pleas. Plaintiffs in that case sought to enjoin the release of such restrictions and the building of a shopping center upon such property, and sought a declaration of rights. That case was dismissed by the Court of Appeals for want of a justiciable controversy. (Ohio App., 179 N.E.2d 117.)

At the March meeting in 1961, the board of directors of the company, acting upon an application by the defendants, voted two to one not to waive such restrictions. In August 1961, a new director from Shaker Heights was appointed. Subsequently, the board of directors voted two to one to waive the restrictions upon the 80 acres to permit the construction of a shopping center.

At the trial of this case, there was sharply conflicting testimony upon almost all pertinent points. These conflicts were resolved by the trial court in favor of plaintiffs, and a decree was granted to the plaintiffs in accordance with the prayer of the petition.

The Court of Appeals, upon an appeal on questions of law and fact, granted a similar decree.

This cause is before this court upon the allowance of a motion to certify the record.

Walter & Haverfield and Jules Eshner, Cleveland, for appellees.

Metzenbaum, Gaines, Schwartz, Krupansky, Finley & Stern, Roland A. Baskin and Samuel T. Gaines, Cleveland, for appellants.

O'NEILL, Judge.

The first question to be determined is whether plaintiffs are entitled to enforce the restrictive covenants covering defendants' land against the defendants.

It is defendants' contention that only owners of property within a subdivision or allotment may enforce such covenants against other owners within the same subdivision or allotment, and that, since defendants' land has never been subdivided, plaintiffs are not within the same subdivision and are, therefore, not entitled to enforce such covenants.

This question has not previously arisen before this court. There is language in cases from other jurisdictions which would tend to support defendants' position. See, e. g., Edwards v. Surratt, 228 S.Ct. 512, 90 S.E.2d 906. However, from a reading of the cases, it appears that the answer to this question lies not in the ascertainment of artificial and arbitrary lines drawn upon a plat book but in the determination of the intention of the parties to be gained from the language of the instrument and the surrounding circumstances. The question to be asked is: For whose benefit was the restriction imposed? See Gammons v. Kennett Park Development Corp., 30 Del.Ch. 525, 61 A.2d 391; Russell Realty Co. v. Hall, Tex.Civ.App., 233 S.W. 996. And see annotation, 89 A.L.R. 812.

If the restrictive covenant was enacted for the benefit of the one seeking to enforce it, he may do so, but the burden is upon him to show that such covenant restricting the use of the lands of another was intended to be for his benefit, and that he has an equitable interest in the other person's adherence to the covenant. Missouri Province Educational Institute v. Schlect, 322 Mo. 621, 15 S.W.2d 770; Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A.L.R. 394.

If land is developed according to a uniform general plan and the intent so to develop such land is shown, reasonable restrictive covenants may be enforced. However, enforcement does not depend upon the existence of a uniform general plan. This is merely one of the circumstances to which the court must look in determining the intent of the parties. Taylor v. Melton, 130 Colo. 280, 274 P.2d 977; Coomes v. Aero Theatre and Shopping Center, Inc., 207 Md. 432, 114 A.2d 631.

In the instant case, plaintiffs, while they are not within an allotment or subdivision in which defendants' property lies, are adjacent property owners and as such will be affected by the shopping center proposed by defendants. Restrictions were imposed upon at least a part of defendants' land by the same instruments imposing restrictions upon the lands of several of the plaintiffs.

Likewise, an intent that the surrounding property owners are to be the beneficiaries of such restrictions is shown by the following paragraph from the instruments imposing restrictions. While there are slight variations among such instruments they are not here material. Paragraph 18 of those instruments provides:

'The herein enumerated restrictions, rights, reservations, limitations, agreements, covenants and conditions shall be deemed as covenants and not as conditions hereof, and shall run with the land, and shall bind the owner until the first day of May, 2026, in any event, and continuously thereafter, unless and until any proposed change shall have been approved in writing by the owners of the legal title to all the land on both sides of the highway within the block in which is located the property, the use of which is sought to be altered by said proposed change.' (Emphasis added.)

At least some of the plaintiffs own land across the highway from this parcel within the block in which a portion of this parcel is located.

In the above-quoted paragraph it is to be noted that the owner is absolutely bound by the covenants until 2026 and, after that time, may secure a release of those covenants only by obtaining the consent of surrounding property owners. The fact that such property owners are given eventual control over such change of use indicates that they were intended to benefit from the covenants restricting the use of defendants' property.

The factual question whether the restrictive covenants in question are part of a uniform plan of development and were imposed with the intention of benefiting plaintiffs was determined by the courts below in favor of plaintiffs, and there is...