Boyden v. Roberts

• Decision Date: 30 April 1907
• Citation: 111 N.W. 701,131 Wis. 659
• Parties: BOYDEN ET AL. v. ROBERTS ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 659

111 N.W. 701

BOYDEN ET AL.

v.ROBERTS ET AL.^a1

Supreme Court of Wisconsin.

March 19, 1907.

Dissenting Opinion April 30, 1907.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Action by Sarah W. Boyden and others against John Roberts and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

This action was brought to quiet title to certain land owned by the plaintiff Edward G. Uihlein, against claim of defendants that a restriction existed, limiting the use created by a certain agreement, hereafter designated as the “Johnston-Weiss agreement.” The defendants answered, among other defenses, by way of counterclaim, setting up the agreement, and demanding affirmative relief against the violation thereof by the plaintiff. The plaintiffs replied to the counterclaim, and the case was submitted to the court upon the pleadings, stipulation of parties, and depositions of John Johnston, Jr., and George A. Weiss. The facts established by the admission of parties and findings are substantially as follows: On May 1, 1891, one John Johnston, Jr., became the owner of about 106 acres, known as “Forest Glen,” situate on the north shore of Geneva Lake in Walworth county, Wis., and having a shore line of about 2,000 feet, which tract included all the lands referred to in the pleadings herein, and owned by any of the parties to this action. On October 20, 1892, Johnston sold and conveyed 13.41 acres of said land, being about 700 feet of the shore, to George A. Weiss, and, as a part of said transaction, Johnston and Weiss entered into the following agreement: “This agreement made and entered into the 20th day of October, 1892, by and between John Johnston, Jr., of the city of Chicago, county of Cook, and state of Illinois, of the first part, and George A. Weiss, of the same place, of the second part, witnesseth: Whereas, said John Johnston, Jr., is the owner of certain real estate situated in section eleven (11), township one (1), north, of range sixteen (16) east, in the county of Walworth and state of Wisconsin, said property being otherwise known as ‘Forest Glen,’ and being more particularly described in a deed executed by Joel C. Rockwell to said John Johnston, Jr., under date of May 1, 1891, and which deed is recorded in the recorder's office of said county, in Volume Eighty-One (81) of Deeds, page 590; and, whereas, said Johnston has sold a portion of said property to said Weiss, and is about to convey the same to him by deed bearing this date; and whereas, it has heretofore been, and is now, agreed and understood between said parties that the character of all of said property known as ‘Forest Glen’ as first-class residence property shall be preserved by the present owners and future purchasers of the same. Therefore, and in consideration of one dollar ($1.00) by each of said parties paid to the other, the receipt whereof is hereby acknowledged, it is hereby covenanted and agreed between said parties for themselves and their respective heirs, executors, administrators, and assigns, that no part or portion of said Forest Glen property hereinbefore mentioned shall at any time be occupied, sold, or used by them, or either of them, or by either of their heirs, executors, administrators, or assigns, for hotel, club, or camping purposes, or for any reformatory, charitable or penal institution. This agreement shall be binding upon the respective heirs, executors, administrators, and assigns, of the parties hereto, and shall constitute a covenant running with the land.”

Both the deed from Johnston to Weiss and the agreement were duly signed, sealed, witnessed, and acknowledged, so as to be entitled to record, and were filed for record in the office of the register of deeds of Walworth county, Wis., on the 7th day of November, 1892, and duly recorded. The land referred to in the agreement of October 20, 1892, as about to be conveyed by said Johnston to Weiss was the identical land described in the deed of same date from Johnston to Weiss; but such deed contained no reference to the Johnston-Weiss agreement. At the time of the execution of said agreement Geneva Lake was an attractive and much frequented summer resort, and property situate upon its shore was greatly sought after for summer residences. After recording said deed and agreement Weiss erected upon the property conveyed to him an expensive summer residence, and thereafter occupied it during the summer months until sold in September, 1899, to plaintiff Uihlein; and in said deed conveying the premises was inserted the following: “Subject also to an agreement regarding the use of said property entered between John Johnston, Jr., and said George A. Wiess, on the 20th day of October, 1892, and recorded in the office of the register of deeds for Walworth county, state of Wisconsin, in Volume 65 of Mortgages, on page 435.” Defendants John Roberts, Jeremiah J. Mogg, and Millard E. Mogg are each owners of separate parcels of land situate on the north shore of Geneva Lake, and formerly constituted parts of Forest Glen, title to which each of them acquired through mesne conveyances from Johnston, subsequent to the execution and recording of said Johnston-Weiss agreement; but none of said conveyances contained any reference to said agreement. At the time of their purchases, respectively, each of said defendants was furnished with an abstract of title to the premises, and upon each abstract was shown said agreement. Said abstracts were examined and title accepted with full knowledge of said agreement, and believing it to be in force and valid. Said Roberts and Millard E. Mogg had personal knowledge of said agreement at the time of their respective purchases, and Jeremiah J. Mogg was informed thereof immediately after the purchase, and each of said defendants accepted the same in good faith as binding, and regarded it as enhancing the value of such property. Since purchasing, defendants have severally improved the premises at large expense by the erection of summer residences. On October 26, 1903, plaintiff Uihlein purchased through mesne conveyances from Johnston all that remained of Forest Glen property, which he thereupon subdivided into lots, and caused a plat thereof to be recorded. Said purchase and platting were subsequent to the purchase and improvements made by defendants. Upon lot 1 in said subdivision, plaintiff Uihlein and the other plaintiffs have laid out golf links, and upon lot 3 they are proposing to erect a clubhouse, locker house, and pier or boat landing; all to be used for club purposes. Title to both of said lots 1 and 3 is in Uihlein individually. Other lots in Uihlein subdivision have been conveyed to plaintiffs Sarah W. Boyden, Edgar G. Stearns, John H. Dawson, and Herbert G. Brinsley; and none of them had their attention called to said agreement. In deed to Uihlein of Johnston, Jr., tract no reference was made to the agreement, nor in the deeds from Uihlein to his coplaintiffs; and, when making said purchases Uihlein had forgotten, if he had ever known, that said agreement in terms included the land so purchased. It is the intention of plaintiffs to erect and maintain the proposed clubhouse on lot 3 as a neighborhood and social clubhouse, to be used in connection with the golf grounds, and for other social purposes. It is not intended to limit the membership of the proposed club for whose use the clubhouse is to be erected. The pier proposed to be erected in front of lot 3 is to be for the accommodation of members, their families, and guests. It is expected that during the summer season both public and private boats will call frequently at the proposed pier, for the purpose of receiving and discharging passengers; that said clubhouse and grounds will be in use for playing golf and other social diversions on all days of the week, including Sundays; that boats calling at said landing will announce their approach by whistle; that private boats bringing members or guests will frequently tie up at said landing while the passengers are engaged in play; and that such coming and going and lying to of steamboats will cause more or less noise, disturbance, and the emission of smoke in the vicinity; and that such proposed use of the premises, or other use thereof for club purposes, is objectionable to defendants, and is regarded by them as distracting and interfering with the privacy of their homes, and the quiet, seclusion, and rest which they sought in purchasing and building the same.

Conclusions of Law.

The Johnston-Weiss agreement did create a valid and binding restriction upon the use thereafter of all said premises known as “Forest Glen;” that said restriction created by said agreement, constituted and became a covenant running with the land, and binding upon the parties thereto. The record of said agreement was notice thereof, and of said restriction therein contained, to all subsequent purchasers of said Forest Glen tract and binding upon them. The proposed use of lot 3 in said Uihlein subdivision for club purposes is within the terms of said restriction, and, if carried into effect, would constitute a violation thereof. The plaintiffs severally purchased their respective holdings of land with notice of, and hence subject to, said restriction. Defendants, as grantees or assigns of said Johnston, Jr., are entitled to the benefits of said restriction; the defendants are entitled to judgment, dismissing the complaint and enjoining the plaintiffs from erecting, maintaining, or operating the proposed clubhouse, or any hotel or other building or institution prohibited by said agreement. Judgment was entered dismissing the complaint, and restraining plaintiffs as prayed in the counterclaim, from which plaintiffs appealed to this court, and assign the following errors: (1) In adjudging that the defendants are entitled to the benefit of the restrictions in the Johnston-Weiss agreement and have the right to...