Carr v. Trivett

• Decision Date: 25 June 1940
• Docket Number: 1.
• Parties: CARR et al. v. TRIVETT et al.
• Court: Tennessee Court of Appeals

143 S.W.2d 900

24 Tenn.App. 308

CARR et al. v. TRIVETT et al.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

June 25, 1940

Certiorari Denied by Supreme Court October 5, 1940.

Appeal from Chancery Court, Washington County; Robert M. May Special Chancellor.

Suit by Paul B. Carr and others against Ola Mae Trivett and others to enjoin defendants from operating a tourist home upon a lot purchased from complainants as part of a restricted residential subdivision. From a decree for complainants defendants appeal.

Affirmed.

Guinn & Mitchell, of Johnson City, for appellants.

Chase & Neel, of Johnson City, for appellees.

McAMIS Judge.

This case is here for a review of the chancellor's decree enjoining defendants, Ola Mae Trivett et al., from operating a tourist home upon a lot purchased from complainants as a part of a restricted residential subdivision known as Sequoyah Hills near Johnson City, Tennessee.

From the findings and decree of the chancellor, defendants have appealed and assigned errors raising, as the primary insistence, that the operation of a tourist home is only incidental to the use of the premises for residence purposes and does not constitute the conduct and operation of a business. It is also insisted that Sequoyah Hills, for reasons to be hereinafter noted, is not, and cannot be developed as an exclusive residential section, and that complainants are estopped to invoke the restrictive covenants of defendant's deed.

It appears that for many years prior to 1937 complainants owned a valuable tract of land just outside the corporate limits of the city of Johnson City extending for a distance of more than 2,000 feet along the eastern side of U.S. Highway 11 E and having a depth of approximately 400 feet. This property was then seeded to alfalfa. The only building upon it was an old barn used by complainants as a tool shed and for the storage of hay. They also owned a tract of farm land immediately across the highway upon which was also located a barn used by complainants in their farming operations.

Between the southern extremity of this property and the city limits of Johnson City, and for a distance of more than a mile, property adjoining the highway is exclusively devoted to residential purposes. As we understand the record, this property is also restricted to residential purposes. Homes in this section range, in cost of construction, from $8,000 to $15,000.

Immediately to the north of complainants' property and on the eastern side of the highway is the home of Dr. Metzer. On the opposite side of the highway there is another residence. It appears that both of these residences are of expensive construction. A little further to the north and about 300 yards from complainants' property there was located, at the time of the sale to defendants, a barbeque stand known as "The Fat Boy".

About the year 1937 complainants expended a large sum of money in extending a water main from the corporate limits of Johnson City. About the same time the property on the east side of the highway was surveyed and mapped. The property was divided into 44 lots of a frontage of 50 feet each. A large sign was thereupon erected upon the premises advertising the property as "Sequoyah Hills, an Exclusive Residential Subdivision."

On March 21, 1938, defendants purchased lots 35 and 36 by deed containing the following restrictions: "1. That said property shall not be used except for residential purposes and that no building or structure shall be erected thereon to be used for the purpose of any trade, manufacture or other business.

"2. That no dwelling house or residence shall be built on said property having a frontage of less than 100 feet on the front property line, which shall front on Federal Highways 11 E, 19 W and 23, and shall conform on the established building line, the front of which structure shall not be less than 100 feet from the front line of said property, and 12 1/2 feet from each of the two side lines of said property.

"3. That no dwelling house or residence shall be built on less than 100 feet frontage and to not cost less than $6,000.00 on this or any other property that fronts on said Federal Highways 11 E, 19 W and 23.

"4. That neither said property nor any residence nor dwelling house erected thereon, shall be sold, leased or rented to any person of African descent."

A further provision of the deed bound complainants not to sell any other lots in said subdivision except subject to the same restrictions as provided in defendants' deed.

Prior to the conveyance of these two lots to defendants, complainants had conveyed the two lots immediately adjoining to another purchaser. This deed contained the same covenants and restrictions as set out in defendants' deed. It appears that the dwelling house erected by defendants, as well as that of the other purchaser, cost in excess of $6,000 and otherwise complied in every particular with the building restrictions contained in these deeds except that defendants' house, when completed, was found to be only 11 feet from the divisional property line instead of 12 1/2 feet as required by the terms of their deed. No objection appears to have been made at any time by any interested party to this minor deviation from the strict terms of the restrictions. Complainants continued to harvest the alfalfa grown on the unsold portion of the subdivision and to use, without objection, the old barn for the purposes mentioned. A small amount of tobacco also appears to have been grown by the purchaser of lots adjoining defendants' lots. It does not appear that complainants knew of this fact.

It appears that defendants knew, at the time they purchased their lots, that Sequoyah Hills was being advertised and sold as an exclusive residential development and, we infer, that they had no intention of operating a tourist home upon their premises. However, about 30 days after the completion of their house, they placed a sign along the highway advertising a tourist home. Upon objection from complainants they removed the sign about October 1, 1938, and did not replace it until in the spring of 1939. Complainants thereupon made further protest but defendants declined to remove the sign or discontinue the conduct of a tourist home on the premises, and the present suit followed.

The proof shows that four of the eight rooms in defendants' house are used during the busy season and when necessary for the accommodation of tourists. Their premises are regularly inspected by hotel inspectors of the State and they have procured the required license for the operation of a tourist home. It is shown that they maintain a register for registering guests similar to the practice of hotels and, in addition to the sign in front of the property which is kept lighted at night by electric light, they also solicit guests through two or more filling stations where cards are kept on display and handed to tourists. According to defendants' testimony they accommodate, during the busy season, from 12 to 15 tourists per week from which they derive an income of from 75 cents to $1 each.

The primary question to be determined is whether, under these circumstances, the property is being used for any purpose other than residential purposes and whether the conduct and operation of a tourist home constitutes the use of the property for "the purpose of any trade, manufacture or other business." We think, under the authorities to be cited, this question must be resolved in favor of complainants and the decree of the chancellor affirmed unless, as defendants insist, the subdivision in question, because of its surroundings, cannot be maintained as an exclusive residential section.

In Laughlin v. Wagner, 146 Tenn. 647, 653, 244 S.W 475, 476, in determining the rights of parties bound by a similar restrictive covenant, the court said: "Unquestionably it is an established rule of law that a person owning a body of land may sell portions thereof and make restrictions as to its use for the benefit of himself as well as those to whom he sells other portions of the land, and he may invoke the remedy of injunction to prevent the violation of the same, in proper cases, provided of course the restriction is not...