Castleman v. Avignone

• Decision Date: 05 April 1926
• Docket Number: No. 4292.,4292.
• Parties: CASTLEMAN et ux. v. AVIGNONE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 253, 12 F.2d 326 (1926)

CASTLEMAN et ux. v. AVIGNONE et al.

No. 4292.

Court of Appeals of District of Columbia.

Submitted January 4, 1926.

Decided April 5, 1926.

W. G. Gardiner and J. W. Tomlinson, both of Washington, D. C., for appellants.

A. A. Alexander and F. H. Ridgway, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GRAHAM, Presiding Judge of the United States Court of Customs Appeals.

GRAHAM, Acting Associate Justice.

This was a bill in equity, filed by the appellees, Natale Avignone, Corinne Avignone, his wife, and Ramona Sellhausen, against the appellants, Alfred Castleman and Rebecca Castleman, his wife. The facts disclosed on the hearing below, and upon which the bill is based, are substantially as follows:

On June 10, 1897, Mary I. McAllister, John Sherman, trustee, Catherine C. Dolloway, Edward Dolloway, Mason N. Richardson, Hattie Richardson, Ellen S. Du Bois, Charlotte A. Richardson, Charles W. Richardson, Susie Richardson, Mary B. Mills, and George M. Mills signed, sealed, and severally acknowledged a certain instrument in writing, which, less the signatures and acknowledgments, is as follows:

"This agreement, made this 10th day of June, 1897, by and between Mary I. McAllister (widow), party of the first part, John Sherman, trustee, party of the second part, Catherine C. Dolloway and Edward Dolloway, her husband, party of the third part, Mason N. Richardson, Hattie Richardson, Ellen S. Du Bois, Charlotte A. Richardson, Charles W. Richardson, and Susie Richardson, parties of the fourth part, and Mary B. Mills, party of the fifth part, and George H. Mills, her husband, owners of lots as below: Party of the first part, lots 46 and 54; party of the second part, lots 45, 47, 48, 49, 50, 51, 52 and 53, McAllister subdivision; parties of the third part, owners of lots 31, 32, and 33, Commissioners' subdivision; parties of the fourth part, owners of lot 24, Commissioners' subdivision; party of the fifth part, owner of the north one-half of lot 23, all of lots 25 and 26, and the south one-half of lot 27, Commissioners' subdivision, in block eight (8), of the Commissioners' subdivision known as Washington Heights — in the District of Columbia, and recorded in Book County No. 6, page 115, February 1, 1888, and being desirous that a building line shall be established at a certain distance back of the front line of above-mentioned lots, agree to the following restrictions, that is to say: The front of any building erected upon the said lots shall conform to a building line (hereby established by this agreement), seven and one-half (7½) feet from the front line of said lots upon Eighteenth Street; that is to say, the front line of each and every house erected upon any of said lots, and parts of lots, shall be seven and one-half feet back of the front line of said lots: Provided, however, that nothing in this agreement shall prevent the erection of bay windows, steps, or other projections that are now allowed or hereafter to be allowed upon streets of ninety (90) feet in width by the building regulations of the District of Columbia; such steps and projections to conform in all respects to said regulations. Now, therefore, the said parties hereto, for themselves, their heirs, executors, and administrators, do hereby covenant and agree and promise each to the other, his heirs, executors, and administrators, to this agreement."

This instrument in writing was duly recorded June 30, 1899. The said parties were then the sole owners of said premises, which comprised a strip of land 525 feet in length and 92 feet in depth along the east side of Eighteenth Street (N. W.) in the District of Columbia; the north line of said tract being 122.91 feet south of Columbia Road.

On July 15, 1904, a plot was recorded by the owner thereof, subdividing lots 24, 25, 26, and the south half of lot 27, of said premises, into, from south to north, lots 90 to 99, inclusive, each of said lots being 17.5 feet in width. At the time the agreement heretofore quoted was executed and recorded, there were no buildings upon the premises covered thereby, and no buildings were erected thereon until title to the lands had passed from the signers to others. Since that time a further subdivision of lots 31, 32, and 33 has been made. About 25 years ago the first houses were built on this 525-foot strip, and others have been erected since, until, at the time the bill herein was filed, all the lots in the territory in question were improved, and were numbered, south to north, from 2413 to 2471, inclusive.

On July 24, 1917, the appellants purchased lot 98, being the premises now known as 2433 Eighteenth Street, from one William E. Horton. The deed of conveyance executed and delivered to them recited: "Subject to the condition that no building shall be erected upon said lot within 7½ feet of the front line thereof on Eighteenth Street, except bay windows, steps, or other projections allowed by building regulations of the District of Columbia."

The title of appellants came through sundry mesne conveyances from Mary B. Mills, one of the parties to the original agreement. All conveyances in the chain of title contained the restrictive clause in question, except one, a conveyance from Franklin T. Sanner to Charlotte Dailey, made September 3, 1904, which contained no reference thereto. Appellees Natale Avignone and Corinne Avignone purchased lot 96 (also known as No. 2429 Eighteenth Street) July 27, 1920, from one Francesca Sorivi; the deed of conveyance to them containing a similar clause to that heretofore quoted as appearing in the title deed of appellants. The title to this lot descended by sundry mesne conveyances from the said Mary B. Mills; each conveyance in the chain of title containing a restrictive clause, except one, dated September 28, 1908, from Marion Dorsel to Pauline Gusdorf.

The subdivision of lots 24, 25, 26, and the south half of lot 27, namely, lots 90 to 99, inclusive, was improved by substantial brick buildings of similar exterior, three story and basement type. One lot, 17.5 feet in width, separates the properties of appellants and appellees. At the time the circumstances occurred which caused the filing of the bill herein, appellant Alfred Castleman was a cabinet maker and resided with his family at No. 2433, which he used both for business and residence purposes. The appellees Natale Avignone and Corinne Avignone then resided at 2429, using the same for a residence and conducting a pastry and confectionary store on the first floor. The appellee Ramona Sellhausen is a cestui que trust in a trust deed dated June 3, 1921, upon said last-named premises, to secure a loan of $4,000.

On July 11, 1921, appellant Alfred Castleman filed an application in the office of the building inspector of the District of Columbia and obtained a permit to make certain improvements upon his said premises, including the construction of a new show window and certain other minor changes, it not being proposed, however, in this application, to build out the front walls. Thereafter, on August 5, 1921, he made application for certain changes in his permit, these changes consisting of an extension of his building to the front lot line, with a show window further extending from this to a distance of 3 feet. Work upon these changes started about July 29, 1921. Immediately after the issuance of the second permit, on August 5th, work was started on the foundation of the new extended side walls.

The appellees thereafter, on August 19, 1921, filed their bill herein, praying for an injunction against the further construction of said building beyond the building line described in the said agreement of June 10, 1897, and for a mandatory injunction to remove the portion already built. At the time the writ of temporary injunction was served upon appellants, the new front of appellants' building had reached the height of about 15 feet and the side walls 23 or 24 feet.

The other facts will be hereinafter stated as they become material.

The appellants answered the bill of complaint. On hearing, a decree was entered, granting relief in conformity with the prayer of the bill, and from that decree appellants bring the cause here.

The appellants do not contend that the agreement of June 10, 1897, was invalid, or one which the parties thereto might not make, or one which, under some circumstances, might not be enforceable. But it is argued, under the facts established by this record, it should not be enforced in equity, for four reasons, namely: First, the appellees are estopped by their acts from obtaining the relief they seek here; second, the agreement of June 10, 1897, was a personal covenant between the original signers thereof, and does not bind appellants; third, the character of the neighborhood has so changed as to render inequitable the granting of the relief sought; lastly, the Zoning Commission Act of March 1, 1920, has superseded and nullified said agreement.

If the appellees, by their conduct, induced the appellants to believe that a compliance with the conditions of the said agreement would not be insisted upon, and with full knowledge of the facts stood by and permitted valuable and costly improvements to be made, while it was within their power to prevent this, then it must be conceded equity ought not to interfere. Whether the appellees are so estopped can be determined only by a consideration of the facts shown by the record.

The appellants purchased lot 98 on July 24, 1917. Their title deed contained a restrictive clause fixing a building line in conformity with the original agreement. At that time all of the lots in the 525-foot strip included in the original agreement were improved with buildings, all of which, about 30 in number, including appellants' building, had been built with their front walls in conformity with the original restrictive agreement. This...