Biltmore Development Company v. Kohn

• Decision Date: 05 June 1931
• Citation: 239 Ky. 460
• Parties: Biltmore Development Company v. Kohn.
• Court: United States State Supreme Court — District of Kentucky

239 Ky. 460

Biltmore Development Company v. Kohn.

Court of Appeals of Kentucky.

Decided June 5, 1931.

1. Covenants. — Where owner sells building lots, restrictions under general plan or scheme inure to grantees' benefit, and are enforceable by one grantee against another.

2. Vendor and Purchaser. — Where restriction appeared throughout chain of title, but not in recorded plat, grantee held charged with notice of general scheme or plan for residential development.

It appeared that all deeds in grantee's chain of title contained covenant restricting use of lot to residence purposes; that recorded plat showed that lots in immediate neighborhood were evidently intended to be used for residential purposes; that all lots in neighborhood had been improved in a manner apparently in conformity with a general scheme or plan, and there had been no substantial change in character and use of the territory; and that slight investigation would have disclosed that deeds to all property in neighborhood contained restrictions similar to the one contained in deed to grantee mentioned, who proposed to construct storage garage on rear portion of lot to contain more than twenty automobiles for accommodation of tenants in grantee's apartment building on adjoining lot.

3. Covenants. — Erection of apartment house does not violate deed restricting buildings to "residences."

4. Covenants. — Erecting garage on rear of lot, restricted to residences, slightly larger than owner requires, is not material violation changing residential character of neighborhood.

5. Covenants. — Garage on lot restricted to residences cannot be justified as incidental to nonexistent residence or to apartment building on adjoining lot.

6. Covenants. — To avoid acquiescence in claimed violation of building restriction allegedly estopping grantees from enjoining subsequent violation, grantees, when chancellor refused injunction, were not required to appeal.

7. Covenants. — Acquiescence in inconsequential violations of restrictive covenant, not effecting material change in restricted territory, does not estop property owner from objecting to substantial violation.

Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

BENJ. S. WASHER for appellant.

BENJ. F. WASHER and WALTER S. LAPP for appellees.

OPINION OF THE COURT BY JUDGE REES

Affirming.

Biltmore Development Company is the owner of a lot in block 2 of what is known as Bonnycastle subdivision in Louisville, Ky., fronting 177 1/2 feet on Everett avenue and 200 feet on Bonnycastle avenue, on which is located an 11-story apartment house known as the Commodore Apartments. On the rear of the lot there has been erected a large garage for the use of the tenants in the apartment house.

In August, 1930, the development company purchased lot 22, block 2, of Bonnycastle subdivision, which adjoins its lot on which the Commodore Apartments are located. Appellees Lee Kohn and Marion Kohn own lot 21, which adjoins lot 22. Each of these lots fronts 50 feet on Everett avenue, and on each lot is a residence. The development company proposed to erect a storage garage on the rear portion of lot 22 sufficiently large to contain more than twenty automobiles. The proposed garage was to be for the use of the tenants in the apartment building on the adjoining lot.

The appellees brought this suit, in which they asked that appellant be enjoined from erecting the proposed garage on lot 22, because its erection would violate certain restrictions contained in the deeds to all the lots in Bonnycastle subdivision, including lots 21 and 22. This restriction appearing in each deed was that the lot should "be used for residence purposes only." The case was submitted upon the pleadings, agreed stipulation of facts and the affidavit of Brent Altsheler, which by consent was read as his deposition. The chancellor held that the restriction on lot 22 was binding upon appellant, that appellees had a right to enforce the restriction, and judgment was entered enjoining appellant from proceeding with the erection of the garage.

The facts disclosed by the record are briefly these: On and prior to June 30, 1904, Mrs. Harriet Bonnycastle owned about 150 acres of land near Cherokee park in Louisville, Ky. By a power of attorney recorded in the Jefferson county clerk's office she appointed Brent Altsheler her attorney in fact to subdivide into lots, with appropriate streets and alleys, her tract of land of about 150 acres. He had a plat prepared which was recorded in the county clerk's office. Several hundred copies of the plat were made, which were used in an advertising campaign to sell the lots of the subdivision, and on each of which was printed in red ink a statement of restrictions, among which was the following: "Bonnycastle is for residence purposes only, being restricted against stores or business houses of any kind." The statement of restrictions did not appear on the plat recorded in the clerk's office.

Among the facts stipulated by agreement to be considered in evidence were the following:

"That all deeds executed by owners of the Bonnycastle Subdivision, conveying all of the lots as shown on said plat, contained as a provision in each deed the restriction that the property `was to be used for residence purposes only.' That all mesne conveyances by purchasers of lots in said subdivisions are evidenced by deeds in which the same restriction is set forth. That the lot of plaintiffs, being Lot 21, in Block 2 has passed through several conveyances from the original owner of the subdivision to plaintiffs, and that in each deed the restriction aforesaid is found. Likewise, that lot 22 in Block 2 now owned by defendant, has passed by several...