Callahan v. Weiland

• Citation: 291 Ala. 183,279 So.2d 451
• Parties: , 65 A.L.R.3d 1201 Alston M. CALLAHAN v. Henry J. WEILAND and Ellen deM. Weiland. SC 98.
• Decision Date: 21 June 1973
• Court: Supreme Court of Alabama

Page 451

279 So.2d 451

291 Ala. 183, 65 A.L.R.3d 1201

Alston M. CALLAHAN v. Henry J. WEILAND and Ellen deM. Weiland.

SC 98.

Supreme Court of Alabama.

June 21, 1973.

Charles A. J. Beavers, Skinner, Large & Corley, Barnett, Tingle & Noble, Birmingham, for appellant.

Don B. Long, Jr., Birmingham, for appellees.

HARWOOD, Justice.

This is an appeal from a decree in a declaratory judgment action whereby the respondent, Dr. Alston M. Callahan was enjoined from constructing a ten story multi-unit condominium on lots 2, 3, 4, 5, and 6 located on top of Red Mountain in Birmingham, in a subdivision known as Warwick Manors.

Warwick Manors subdivision was originally laid out by the Tennessee Land Company, and a map thereof was recorded in the office of the Probate Judge of Jefferson County, Alabama, in October 1927. The United States Steel Corporation became the successor of Tennessee Land Company.

No restrictions on the use of the lots were imposed by the plat filed by the Tennessee Land Company on the use of the lots in the subdivision.

All of the lots in Warwick Manors were sold, the lots being described according to the plat as recorded. The deeds of conveyance to the different grantees contained the following limitations, restrictions, and provisions as to the use of the lots which are material to this review.

'(1) That said property shall be used by white persons only, except that any servant or servants employed on the premises may occupy servants' quarters or house;

'(2) That the said property shall be used for residence purposes only, and not for any purpose of business or trade;

'(3) That no building, except a single dwelling house with necessary outbuildings shall be erected or maintained on said property, such dwelling house to cost in its construction not less than $7500.00; it being intended hereby to prohibit, and there shall not be maintained on said premises any dairy, sanitarium, apartment house, double or duplex house, inn, boarding house or place of any sort for the serving of food or refreshments to the public, public garage, public stables, public hall, or transportation equipment for doing work under contract or hire; no dog kennels shall be maintained or per stock raised for commercial purposes on any part of said lot;

'(6) Said property shall not be subdivided or reduced in size by voluntary alienation judicial sale or other proceedings, except at the discretion and with the approval of the Tennessee Land Company or its authorized employee; * * *'

'The foregoing limitations, restrictions, and conditions shall be binding upon future owners as well as upon the grantee herein, subject to the right herein reserved by the Tennessee Land Company to waive, annul or modify such limitations, restrictions or conditions. * * *'

In 1929 the Tennessee Land Company executed a deed to Elizabeth T. Cartwright to lot 11 and a 15 foot strip of the east end of lot 12, all in Warwick Manors. By mesne conveyances, this property became vested in the complainants herein, Henry J. Weiland and his wife Ellen.

By deed dated 15 December 1943, lot 4 in Warwick Manors was conveyed by the Tennessee Land Company to Robert S. Smith and Helen Rox Smith, and by deed dated 12 January 1944, lots 2, 3, 5, and 6, among other lots in Warwick Manors were conveyed to the Smiths. By mesne conveyances lots 2, 3, 4, 5, and 6, were acquired by the respondent Dr. Callahan.

All of the deeds executed to the predecessors in title to both the complainant and the respondent, contained the restrictions above set out, other than in the deed to lot 4, the restriction on the cost of any house to be built thereon was fixed at $15,000.00 rather than $7,500.00 as provided in the deeds to the other lots above mentioned.

On 30 December 1970, in an instrument recorded 7 January 1971, the United States Steel Corporation, as successor by merger to the Tennessee Land Company, released and relinquished all rights it had to waive, modify, annul, or enforce the restrictions relating to Warwick Manors subdivision of the Tennessee Land Company and all lots therein as shown by the recorded plat.

On 17 February 1971, the complainants entered into an agreement with Lottie S. Matthews, the then owner, to purchase lot 11 and the east 15 feet of lot 12, all in Warwick Manors, for the sum of $27,500.00. The sale was to be closed in 15 days or the $500.00 earnest money paid by the complainants was to be forfeited. The property was to be conveyed subject to restrictions in the deed from Tennessee Land Company to Elizabeth T. Cartwright.

On 6 April 1971, the United States Steel Corporation executed a document entitled a 'Correction Agreement,' setting forth that the document of 30 December 1970, wherein it released its right to waive, modify, annual or enforce the restrictions relative to the lots in Warwick Manors, was mistakenly drawn and its effect was to freeze the restrictions and limitations in the deeds to the Warwick Manors lots, whereas in fact the United States Steel Corporation was attempting to grant permission to the owners of lots 1, 2, 3, 4, 5, 6, and 8 to build thereon the type of residential structure known as a 'condominium.'

As before stated, Dr. Callahan having become the owner of lots 2, 3, 4, 5, and 6 in Warwick Manors, made known that he intended to build a ten story condominium on said lots, or parts thereof.

The Weilands thereupon filed a declaratory action to determine the operative effect of the restrictions in the Warwick Manors' deeds, and also petitioned therein for an injunction to prohibit Dr. Callahan from proceeding with his proposed erection of the condominium building.

The respondent, Dr. Callahan, filed a cross bill and answer.

After a hearing, the Chancellor decreed that the restrictions set forth in the deeds to lots 2, 3, 4, 5, and 6 are valid and enforcible, and meant that only one single dwelling house could be created on any one lot.

It was further decreed that Dr. Callahan, his agents, architects, engineers, contractors and attorneys be permanently enjoined from engaging in any activity related to the construction of any building in violation of the restrictions set forth in the deeds to the lots.

From this decree the respondent Callahan perfected this appeal.

Appellant contends that the restrictions imposed in the deeds by the Tennessee Land Company were reserved solely for the benefit of the company, and therefore cannot be deemed to be covenants running with the lots sold by the company nor appendant to such lots. Particularly is this true, says the appellant, in view of the provision that the Tennessee Land Company reserved the right at any time to change, modify, and/or annul the restrictions.

Disregarding for the moment the provision that the Tennessee Land Company reserved the right to alter, change, and annul the restrictions imposed on the purchasers of the lots in Warwick Manors, it would appear that the restrictions would naturally tend to enhance the value of all of the lots in the subdivision. It was the apparent intention of the Land Company to develop a highly desirable subdivision on the top of Red Mountain. The restrictions would be appealing to prospective purchasers and would tend to enhance the value of the unsold plots yet in possession of the Land Company. The restrictions may therefore be fairly said to touch and concern the land, and be beneficial to the owners of the lots, whoever they might be, and therefore appendent to the lots. McMahon v. Williams, 79 Ala. 288; Webb v. Jones, 163 Ala. 637, 50 So. 887; Allen v. Axford, 285 Ala. 251, 231 So.2d 122.

Further, as stated in Allen v. Axford, supra:

'It is also firmly established by our decisions that where the owners of a tract of land adopts a general scheme for its development, divides it into lots, and conveys the lots with restrictions as to use, such restrictions create equitable easements in favor of the owners of the several lots which may be enforced in equity by any one of such owners. Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794; Pugh v. Whittle, 240 Ala. 503, 199 So. 851; Scheuer v. Britt, 218 Ala. 270, 118 So. 658; McMahon v. Williams, 79 Ala. 288.'

As to the effect of reservation of Tennessee Land Company to alter or annul the restrictions imposed in its deeds conveying the lots in Warwick Manors, we quote the following governing principle established in Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794:

'Appellees contend that the reservation by the grantor of the right to change or modify the restrictions as to any lot in Redmont Park negates any intention to benefit the lands of other owners. We cannot agree with this contention. To do so would be to construe this language as indicative of his intention to the exclusion of all other language in the deed and all surrounding circumstances. We have in the past given effect to restrictions contained in deeds at the instance of grantees of lots in subdivisions where the grantor had expressly reserved the right to waive, release or annual the restrictions contained in the plot and conveyance. Threasher v. Bear, 239 Ala. 438, 195 So. 441. It seems to us that the power to change the restrictions is only one factor to be considered in determining the intention of the grantor to give the right of enforcement of the restrictions. All language of the deed should be considered in arriving at the grantor's intention. We believe when all the language of the deed under consideration is considered, it is apparent that these complainants (appellants) have a standing to bring this action. * * *'

Likewise in this case, upon a consideration of all the language in the deeds, it is reasonable to conclude that the Chancellor did not err in decreeing that it was the intention of the grantor to give to its vendees the right of enforcement of the restrictions.

Appellant contends that the covenants and restrictions are unenforciable because they are vague and ambiguous, in that the...