Charlotte Consol. Const. Co. v. Cobb
| Decision Date | 06 June 1928 |
| Docket Number | 462. |
| Citation | 143 S.E. 522,195 N.C. 690 |
| Parties | CHARLOTTE CONSOL. CONST. CO. et al. v. COBB et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Harding, Judge.
Action by the Charlotte Consolidated Construction Company against Mrs. E. L. Cobb and others. From a judgment sustaining the demurrer, plaintiffs appeal. Affirmed.
Civil action to enjoin the erection of an apartment house on defendant's lot as being in violation of restrictive covenants contained in deeds conveying said property.
Deed prohibiting more than one residence or "dwelling house" on lot held not violated by erection of apartment house containing four apartments.
The material allegations of the complaint, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:
(1) In 1920, the Charlotte Consolidated Construction Company, being the owner of an undeveloped tract of land in that section of the city of Charlotte known as "Dilworth," decided to divide the same into lots and blocks of various sizes, and develop it as a high-class residential district.
(2) To this end a map was prepared and recorded, showing the general plan and scheme, and all the lots were sold with certain restrictions relative to their use and occupancy, chief among which is the following:
"The lot of land hereby conveyed shall be used for residential purposes only, and not otherwise, and shall be owned occupied, and used only by members of the white race (domestic servants in the employ of said occupants excepted), and there shall not at any time be more than one residence or dwelling house on said lot (servants' house excepted)."
(3) Said restrictions were inserted in all the deeds conveying the different lots shown upon the map, as covenants running with the land, for the mutual benefit and protection of the respective owners thereof.
(4) The corporate plaintiff is not now the owner of any of the lots shown upon said map, but does own property surrounding and in the same neighborhood, while the individual plaintiffs are owners of lots appearing thereon, two of them adjoining the defendant's lot,
(5) The defendant, Mrs. E. L. Cobb, is the owner of one of the lots shown upon said map, and proposes to erect thereon, as plaintiffs allege, "a large flat or apartment house of a severe oblong shape, to be used for the separate accommodation of four different families or family groups said building being arranged into four distinct separate places of residence, or apartments, each of said apartments having its own separate kitchen and other quarters, each being entirely separate from the other, each having its own separate front porch, and each having its own private inside entrance, with no means of communication one with another, except through such inside main entrance to each."
(6) None of the plaintiffs, nor any of the owners of lots shown upon the aforesaid map, has consented for the defendant to build such an apartment house on her property, nor has any of the plaintiffs or any of said lot owners waived the right to protest against a violation of any of said restrictive covenants.
(7) The erection of said apartment house, plaintiffs allege, will result in irreparable injury to their property; wherefore they ask that its construction be enjoined.
A demurrer was interposed by the defendants upon two grounds:
First, because no cause of action is stated by the individual plaintiffs, it appearing that the deed of the construction company to the lot in question, attached to the complaint, contains the following reservation:
"Provided, however, that any of the conditions and restrictions herein contained may be at any time and in any manner changed by and with the mutual and written consent of the parties of the first part, or its successors, and the owner or owners, for the time being, of the lot of land hereby conveyed."
Second, for that the complaint does not state facts sufficient to constitute a cause of action, either against the defendants, or in favor of any of the plaintiffs.
From a judgment sustaining the demurrer, the plaintiffs appeal, assigning error.
Taliaferro & Clarkson, of Charlotte, for appellants.
Whitlock, Dockery & Shaw and T. A. Adama, all of Charlotte, for appellees.
The principal question for decision is whether a building restriction in a deed which provides that the lot of land thereby conveyed "shall be used for residential purposes only *** and...
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Andrews v. Metropolitan Bldg. Co.
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...into decay because there is no single family which can afford to occupy it." (26 A.2d at page 332). In Charlotte Consol. Const. Co. v. Cobb, 195 N.C. 690, 143 S.E. 522, 523, it was held that a restriction that a lot of land "shall be used for residential purposes only * * * and there shall ......
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Scott v. Board of Missions North Carolina Annual Conference, Southeastern Jurisdiction of Methodist Church, Inc., 107
...only, or prohibiting the building of a residence or other building on more than one lot. In the case of Charlotte Consol. Construction Co. v. Cobb, 195 N.C. 690, 143 S.E. 522, 523, the question for decision was whether a building restriction providing that the lot of land thereby conveyed '......
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...To support this contention they rely on Scott v. Board of Missions, 252 N.C. 443, 114 S.E.2d 74 (1960), and Construction Company v. Cobb, 195 N.C. 690, 143 S.E. 522 (1928). In Cobb the court upheld a ruling that the restriction, "shall be used for residential purposes only . . . and there s......