Bove v. Giebel

• Decision Date: 17 June 1959
• Docket Number: No. 35766,35766
• Citation: 159 N.E.2d 425,169 Ohio St. 325
• Parties: , 8 O.O.2d 341 BOVE, Appellee, v. GIEBEL et al., Appellants.
• Court: Ohio Supreme Court

Page 325

169 Ohio St. 325

159 N.E.2d 425, 8 O.O.2d 341

BOVE, Appellee, v. GIEBEL et al., Appellants.

No. 35766.

Supreme Court of Ohio.

June 17, 1959.

Syllabus by the Court

1. The general rule, with respect to construing agreements restricting the use of real estate, is that such agreements are strictly construed against limitations upon such use, and that all doubts should be resolved against a possible construction thereof which would increase the restriction upon the use of such real estate. (Paragraph two of the syllabus of Loblaw, Inc. v. Warren Plaza, Inc., 163 Ohio St. 581, 127 N.E.2d 754, approved and followed.)

2. The owners of a lot in a subdivision, which lot is restricted to use 'for residence purposes only,' may use such lot as a means of ingress to and egress from adjoining land that they own outside the subdivision if they impose upon such outside land the same restrictions that are applicable to lots within the subdivision.

3. A restriction against ownership of a lot of less than a specified size will not prevent the grant of an easement to use a part of a lot, which part is less than the size specified for a lot, for purposes not prohibited by other restrictions with respect to such lot; and an owner of such part of a lot will not be enjoined from using such part merely for such purposes.

Plaintiff is the owner of lot No. 28 in what is known as Crestwood Subdivision, a tract of land extending about 3,800 feet from north to south and extending, at its widest point which is at the south end, slightly less than 565 feet from east to west. Plaintiff's lot is located in the extreme southeast corner of the subdivision and fronts on its north side 142 feet on Doepke Lane, a 50-foot roadway. The other three lots on the south end of this subdivision (Nos. 29, 30 and 32) each front 140 feet on that roadway. Lot No. 29 adjoins plaintiff's lot No. 28 and the boundary between them extends 220 feet from the foregoing-mentioned roadway to the south boundary of the subdivision.

On the south side of lots Nos. 28 and 29 and of part of lot No. 30 is a tract of vacant land about 490 by 530 feet containing approximately six acres, that will be herein referred to as the six-acre tract.

Defendants purchased from the owner of lot No. 29 a strip of land 25 feet wide along the east side of that lot which will be herein referred to as the 25-foot strip. By separate deed and at the same time, defendants purchased the six-acre tract from the same party. Defendants have no legal menas of getting to the six-acre tract except by use of the 25-foot strip.

The following is a sketch of the portion of this subdivision south of Doepke Lane and of the six-acre tract.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The dotted line on lot No. 29 indicates the west boundary of the 25-foot strip.

The following conditions and restrictions are applicable to all lots in the Crestwood Subdivision and were known to defendants when they purchased the 25-foot strip:

'1. Only one single family dwelling may be built on any of said lots, which shall be used for residence purposes only.

'2. The plans for any residence to be constructed on any of said lots shall be submitted to the grantors herein for their approval before construction is commenced.

'3. All dwellings and attached garages shall set back not less than 50 feet from the front property line. No dwelling shall be nearer than 15 feet from the side line of the lot, except as to corner lots such side line space requirements shall conform to the Hamilton County, Ohio, Building Regulations.

'4. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot or the dwellings or garage erected thereon except that dogs, cats, or other household pets may be kept, provided they are not kept, bred or maintained, for any commercial purposes, or in such manner or number as to become a nuisance or offensive to other owners of lots.

'5. All lots shall be at least 20,000 square feet in area.

'6. No sign of any kind shall be displayed to the public view on any lot except one professional sign not more than one square foot in area, one sign of not more than five square feet in area advertising the property for sale or rent, or sign used by a builder to advertise the property during the construction and sales period.

'7. The established grade of lots shall not be altered without the written consent of the grantors, nor shall any dirt be removed from the subdivision.

'8. Should any of the above covenants or conditions be held invalid it shall not affect or invalidate any other covenant or restriction.'

Plaintiff instituted this action against defendants in the Common Pleas Court of Hamilton County to enjoin the use of the 25-foot strip as a means of access to the six-acre tract, contending that such use would constitute a violation of the first and of the fifth of these restrictions.

The answer alleges in part:

'Defendants contemplate the erection of two private residences on said six-acre tract. The sole contemplated use of said 25-foot portion of lot 29 is for the construction of a private lane or driveway, with installation of the necessary utilities for service of said residences.'

The record supports those allegations and does not disclose any evidence tending to disprove them. Furthermore, defendants offered and are still willing to impose the same restrictions with respect to use of the six-acre tract, as exist with respect to the Crestwood Subdivision.

The Common Pleas Court by its judgment enjoined defendants from using the 25-foot strip for ingress to and egress from the six-acre tract.

On appeal to the Court of Appeals on questions of law and fact from that judgment, the Court of Appeals rendered a judgment enjoining defendants from using the 25-foot strip for driveway purposes.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursunt to allowance of defendants' motion to certify the record.

B. William Heidkamp, Cincinnati, for appellee.

Gatch, Kleinmann, Roberts & Kuhn, C. Jackson Cromer and John A. Kiely, Cincinnati, for appellants.

TAFT, Judge.

If we assume, as plaintiff contends and the courts below held, that the word 'which' in restriction No. 1 modifies the word 'lots,' the question still remains whether the use that defendants propose to make of a part of lot No. 29 will constitute a use for other than 'residence purposes' within the meaning of those words in that restriction.

It is apparent that these restrictions contemplate use of part of a lot for a private lane or driveway as a permissible use. Thus, No. 3 speaks about 'attached garages set back * * * 50 feet from the front property line'; and No. 4 refers to 'lot or the dwellings or garage erected thereon.' However, there is no requirement that garages be attached and there is no setback provision with respect to garages that are not attached.

There is obviously nothing in these restrictions that would prevent the owner of lot No. 30 from buying lot No. 29, building his house on No. 30 and using the east 25 feet of No. 29 as a driveway to that house. Also, there is obviously nothing in these restrictions that would prevent the owners of lots Nos. 30 and 32, after each had built a single dwelling on his lot, from together buying lot No. 29 and using any part thereof for a driveway to their two dwellings. Under these restrictions, such use of lot No. 29 would obviously be a use 'for residence purposes only' within the meaning of restriction No. 1 especially when read in the light of other restrictions. Thus, it is apparent that, in order to conclude that the use of lot No. 29 proposed by defendants is forbidden, it would be necessary to revise the words of restriction No. 1 so that they will require not merely a use 'for residence purposes only' but 'for residence purposes in the...