Borssuck v. Pantaleo

• Decision Date: 23 March 1944
• Docket Number: 16.
• Citation: 36 A.2d 527,183 Md. 148
• Parties: BORSSUCK v. PANTALEO et al.
• Court: Maryland Court of Appeals

36 A.2d 527

183 Md. 148

BORSSUCK v. PANTALEO et al.

No. 16.

Court of Appeals of Maryland

March 23, 1944

Appeal from Circuit Court, Anne Arundel County; Ridgely P. Melvin Chief Judge.

Suit by Theodore T. Pantaleo and another against Samuel Borssuck for an injunction restraining defendant from proceeding with erection of a dwelling house and for further relief, wherein the chancellor, deeming it inequitable to require removal of the building, directed the question of damages to be submitted to the law side of the circuit court for trial by a jury. The jury found for plaintiff for $1,500 damages and, on certification of result, the chancellor passed a final decree denying the injunction but giving plaintiffs a money decree for $1,500 damages, and defendant appeals.

Affirmed.

William J. McWilliams, of Annapolis (William Townshend and Albert J. Goodman, both of Annapolis, on the brief), for appellant.

George B. Woelfel, of Annapolis, for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, and BAILEY, JJ.

MARBURY Judge.

The appellees filed their bill of complaint in the Circuit Court for Anne Arundel County for an injunction restraining the appellant from proceeding with the erection of a dwelling house, and for further relief. The appellant answered and testimony was taken. It showed that the appellees, as tenants by the entireties, had purchased a house and lot in a subdivision in the City of Annapolis from Life Long Homes, Inc., on December 2, 1940, and that subsequently the appellant on April 23, 1941, had purchased a lot in the same subdivision adjoining that of the appellees, and had started to construct a large dwelling house thereon. All of the lots in this subdivision were subject to certain restrictions. One was that no building should be located on any residential building lot nearer than thirty feet to the front lot line, or nearer than five feet to any side street line. The appellant's deed did not list the restrictions which were numerous, but did contain the statement that the property was to be held 'subject, however, to the restrictions in chain of title'. The restrictions were known to the attorney who examined the title and prepared the appellant's deed, but he did not communicate them to the appellant. The latter arranged with an architect to prepare plans for a dwelling to be erected on the property. The architect did not look up the restrictions, but assumed that the building line was twenty-five feet from the lot line rather than thirty, because that was the general rule in the City of Annapolis. Bids were asked and a contract made with a builder who was also ignorant of the restrictions and was given no information about them. As a result the house was planned with its wall a little over four feet beyond the front building line, and if the steps are counted, a little over seven feet beyond the front building line. The outline of the building, according to the architect, was staked out on the lot on December 7, 1942, and the foundation was completed about the 21st or 22nd of December. Nothing was done thereafter until after New Year's, and then the studding was put in and it became apparent then, if it was not apparent before, that the entire building was going to extend beyond the building line. There is some disagreement in the testimony as to when the appellees first complained. The appellees testified that they thought that a porch was going to be built on that side of the house, and they did not mind that because it did not cut off their view, but when they saw the studding, it became apparent that the wall of the house was going to extend four feet beyond the building line, and then they began to object. They first saw the contractor and then the architect, and finally called the appellant. None of these objections produced any result except conversations, and the building went on so that finally the appellees filed their bill of complaint. No preliminary injunction was issued, and the appellant did not stop his building. The house was practically completed, at least so far as the outside was concerned, when the case was first heard below. The Chancellor held that it would be inequitable to direct the removal of the building on which $10,000 or more had been spent, and, therefore, did not grant the specific relief prayed for. He felt, however, that the appellees might be entitled to damages, and accordingly passed an order directing that certain issues be framed and submitted to the law side of the Circuit Court for Anne Arundel County for trial by jury. These issues were first, Did the complainants sustain actual damage as the result of the appellant erecting his house contrary to the covenants referred to in his deed, and second, if the jury's answer to the first issue be yes, what is the amount of such damage? The issues were then removed to the Circuit Court for Prince George's County, and on trial there before a jury, the answer to the first issue was yes, and the answer to the second issue was $1500. When the result of this trial was certified to the Chancellor, he passed a final decree denying a writ of injunction, but giving the appellees a money decree for $1500 damages. From that decree, the appeal comes here.

The appellant raises three questions. First, the correctness of the Chancellor in refusing to dismiss the bill entirely at the close of the evidence taken before him. Second, was the Chancellor's action in submitting the issue of damages to the law court an abuse or unwarranted exercise of discretion. Third, was the Chancellor correct in adopting the verdict of the jury and again refusing to dismiss the bill of complaint. They will be considered in order.

The basis of the appellant's first contention seems founded on the general statement that the law does not favor restrictive covenants which is, of course, true. There is, however, no question here of the validity of these restrictions or of their violation. The fact that they were violated unintentionally does not prevent damage and injury being done to the appellees. The Chancellor had before him a claim made by one of the appellees that she thought her property was damaged $5000. The appellees did not introduce more specific evidence of damage because they undoubtedly wanted the house removed. They were in the position of people who had bought a house in a restricted subdivision where there was plenty of light, air, and view, and where all the other houses conformed to the restrictions. A much larger house, which to their minds was out of keeping with the other houses, was built adjoining them, cut off their view, and apparently dwarfed their house. They wanted what they had bought and what they were entitled to, and they were not concerned, in the first instance, with the financial loss occasioned them. Mrs. Pantaleo expressed this by saying, '* * * We were completely satisfied and now I am completely unsatisfied', and later, 'I am interested in having the house moved back; the money is only a slight remuneration for what has been done. The house would still dissatisfy a person'.

The appellant also says that the appellees were themselves guilty of a violation of one of the covenants, and, therefore, the bill should be dismissed. It appears from the evidence that the appellees did build a porch on the side of their house, which extends closer than five feet to the line of the appellant's lot. It seems to be doubtful, however, whether this is a violation of the restrictions, which refers to a side street line. The restriction as to proximity to other lots seems to be two feet. The testimony shows that if the porch is a violation, it only violated the two feet rule by one inch which is hardly a substantial violation, and is not comparable with that of the appellant. We do not think such action by the appellees, even if it is a violation, is sufficient for us to hold that they do not come into court with clean hands.

The appellant also claimed that the appellees were guilty of laches in not having acted earlier, before the appellant had proceeded so far...