Burgess v. Magarian

• Decision Date: 24 June 1932
• Docket Number: No. 40891.,40891.
• Citation: 214 Iowa 694,243 N.W. 356
• Parties: BURGESS ET AL. v. MAGARIAN ET AL.
• Court: Iowa Supreme Court

214 Iowa 694

243 N.W. 356

BURGESS ET AL.

v.MAGARIAN ET AL.

No. 40891.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Polk County; Loy Ladd, Judge.

An action to enjoin the defendants from constructing a filling station on certain lots in the City of Des Moines, and to cancel a permit issued by said City of Des Moines for the construction of said filling station. The district court entered a decree in favor of the plaintiffs. Defendants appeal.

Affirmed.Paul H. Cunningham, of Des Moines, for appellant Magarian.

George A. Wilson, of Des Moines, for appellant Phillips Petroleum Co.

Chauncey A. Weaver, of Des Moines, for appellant City.

Hallagan, Fountain & Stewart, of Des Moines, for appellees.

ALBERT, J.

To a fair understanding of the legal questions involved, we gather the following facts from the record:

Walter E. Burgess, one of the plaintiffs herein, about April 1, 1911, became the owner of 13 acres of land in the northeast quarter of the northwest quarter of section 32, township 78, range 24, west of 5 P. M., Polk county, Iowa, and on April 10, 1920, said acreage was duly platted under the name of Fairacres into 64 lots, and the same is now included in and forms a part of the city of Des Moines, Iowa. As thus platted, Fairacres is bounded on the west by Beaver avenue, on the south by Franklin avenue, on the east by Thirty-Eighth street, and divided by Thirty-Ninth, Fortieth, and Fortieth Street place. These numbered streets all run north and south, paralleling Beaver avenue. All of the 64 lots thus platted were deeded to bona fide purchasers, except lots 5 and 6, which Burgess now owns and occupies for residence purposes, and all of the deeds so conveying the various lots contained the following restrictions, conditions, covenants, agreements, and reservations:

“No building or any part thereof shall be placed nearer than 35 feet to the front line of said property.”

“No residence on Beaver Avenue, or Fortieth Street Place shall cost less, when completed, than $5,000, and on 38th, 39th and 40th Streets, no less than $3,000, and detached garages shall be situated near the rear of said lot, and not nearer than 20 feet to side street lot line.”

“No business or store building shall be placed or constructed on said lot.”

“The above restrictions are to remain in force until the year 1950 A. D., at which time they are to expire and be of no further effect.”

To the northeast of the intersection of Beaver and Franklin avenues, lies the 13 acres thus platted. The numbering of the lots started at this corner as lot No. 1, and continued north along Beaver avenue; the lots being numbered consecutively. Plaintiff Walter E. Burgess is the owner of lots 5 and 6, and Fremont L. Beck is the owner of lot No. 3 purchased in 1929. On the lots constituting Fairacres, beautiful residences have been constructed in pursuance of and under the provisions and restrictions in the various deeds above set out, and the average valuation of the buildings so constructed is about $8,000.

Lots 1 and 2 are the lots in controversy herein. Through a continuous chain of title from Burgess, S. M. Magarian is now the owner of said lots, and, when Burgess conveyed these lots to Beatrice and Glen E. Reed, by separate deeds, each deed contained the restrictions and reservations heretofore set out, as did all of the deeds in the chain of title of Magarian except that from his immediate grantor. Magarian entered into a lease contract with the Phillips Petroleum Company for the purpose of erecting a gasoline, oil, and service station on said lots 1 and 2, and on April 26, 1929, the city of Des Moines issued a permit to the Petroleum Company to erect a one-story gasoline service station, and to locate the same upon said lots, and the prayer of plaintiffs' petition is that the defendants Magarian and the Phillips Petroleum Company be enjoined from erecting and constructing a building to be used as a business or store building, or any building to be used for any other purpose except for a residence, on said lots, or either of them, until January 1, 1950, and that the city of Des Moines be restrained from granting any permit for any building or buildings not in conformity with the restrictions, covenants, agreements, or reservations placed upon said lots, and for such other and further relief as may be equitable, and, by amendment, it appearing that such permit had been issued by the city, that the permit be canceled.

It further appears that the city of Des Moines, in January, 1926, passed a general zoning ordinance affecting all property in said city. By the terms of said ordinance and the action of the city thereunder, the aforesaid lots 1 and 2 were classified and within the zoning area of that class of property which could be used for commercial purposes. The district court, on the submission of this case, found for the plaintiffs, and awarded a permanent injunction against the defendants prohibiting them from the erection of any business or store building, including a gasoline service station, on said lots, until the 1st day of January, 1950, and the building permit issued was canceled, annulled, and held of no force and effect; hence this appeal.

Very complete and elaborate arguments are filed discussing, pro and con, the validity and constitutionality of the zoning ordinance of the city of Des Moines, but, as will be shown subsequently in this opinion, we are not disposed to pass upon the same because it is not necessary to our conclusion under the record in this case.

[1] By reference to the particular deeds heretofore set out, it is found that the restricted covenants were in all of the deeds in Magarian's chain of title from Burgess, except the one from his immediate grantor which did not contain such restriction, but Magarian testified that before and at the time he purchased these lots he knew there were restrictions on the same, but he made no effort to discover what they were. Under such circumstances, the fact that this was a restricted residence district was binding upon him the same as though the particular restrictions were written in his deed. Hegna v. Peters, 199 Iowa, 259, 201 N. W. 803;Shuler...