Chevy Chase Village v. Jaggers

• Decision Date: 29 March 1971
• Docket Number: No. 291,291
• Citation: 275 A.2d 167,261 Md. 309
• Parties: CHEVY CHASE VILLAGE et al. v. Frank Y. JAGGERS, Jr., et ux.
• Court: Maryland Court of Appeals

Page 309

261 Md. 309

275 A.2d 167

CHEVY CHASE VILLAGE et al. v. Frank Y. JAGGERS, Jr., et ux.

No. 291.

Court of Appeals of Maryland.

March 29, 1971.

Rourke J. Sheehan, Rockville (Arthur G. Lambert and Gary H. Simpson, Rockville, on the brief), for appellants.

Charles W. Foster, Bethesda, for appellees.

Argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

The beginning of this case, which involves the efficacy of a residential restrictive covenant, can be traced back to 1927 when the Chevy Chase Land Company recorded a plat subdividing a part of what was to become the rather fashionable suburban community of Chevy Chase Village in Montgomery County, Maryland. The subdivision in question, blandly called 'Section 1-A Chevy Chase' on the plat, was composed of thirteen blocks, numbered 4 through 16. Blocks 6 and 11 contained 60 lots which, because of their location on the northeast corner of the intersection of Wisconsin and Western Avenues, were set aside for commercial development. Two lots in or near that section were conveyed to public utilities. The other blocks were reserved for exclusively residential purposes. With the exception of six lots conveyed to a church and three lots partially destroyed by later re-subdivision, the 204 remaining lots in the residential blocks were bound by the following series to covenants in each of the original deeds by which they were conveyed:

It is hereby understood and agreed that no objection will be raised by the said party of the second part (grantee), her heirs and assigns, to the rezoning of Lots in Blocks 6 and 11 in said subdivision known as 'Section One-A, Chevy Chase,' Montgomery County, Maryland, for use for commercial purposes.

In consideration of the execution of this deed the said party of the second part, for herself her heirs and assigns, hereby covenants and agrees with the party of the first part, its successors and assigns (such covenants and agreements to run with the land) as follows, viz:

1. That all houses upon the premises hereby conveyed shall be built and used for residence purposes exclusively, except stables, carriage houses, sheds or other outbuildings, for use in connection with such residences and that no trade, business, manufacture or sales, or nuisance of any kind shall be carried on or permitted upon said premises. * * * (Covenants 2 through 4 pertaining to location, cost and design of buildings are omitted.)

5. That a violation of any of the aforesaid covenants and agreements may be enjoined and the same enforced at the suit of The Chevy Chase Land Company, of Montgomery County, Maryland, its successors and assigns (assigns including any person deriving title mediately or immediately from said company to any lot or square, or part of a lot or square in the Section of the Subdivision of which the land hereby conveyed forms a part). (Emphasis added.)

It is these covenants which have spurred the case before us. The plaintiff-appellants, Chevy Chase Village, a landowner and a municipal corporation (having the responsibility by charter to enforce restrictive covenants) and Wales H. Jack and his wife, residents of the subdivision, have appealed from a decision by the Circuit Court for Montgomery County (Shure, J.) denying an injunction against the defendant-appellees, Dr. Frank Y. Jaggers, Jr. and his wife. This action in equity sought to enjoin the doctor from using his property as a principal office for the practice of medicine, alleging that such use was in contravention of the covenants.

In 1947, Dr. Jaggers and his wife purchased a lot in Section 1-A on the corner of Wisconsin Avenue and Grafton Street and lived on the premises until early 1967. During most of those twenty years he maintained his medical office on the property. In 1948 he spent $5,000 converting his garage into office space, and in 1959 an additional $15,000 outlay was made to enlarge this office. During this time he had a very substantial practice, which apparently has tapered off in recent years. In 1954, Dr Jaggers applied to the Montgomery County Board of Appeals for a special exception to use his property both as his dwelling and for the practice of medicine in association with another doctor. The special exception was granted with no objection being raised by any of the residents of Section 1-A. Although he worked intermittently over the years with other doctors, Dr. Jaggers is at present the sole practitioner in the office. There are also three other doctors in the subdivision who live and maintain principal offices at their homes, and have done so for some time. In 1967 the Jaggers moved to Potomac, Maryland, renting their house as a residence, although the doctor continued to maintain the office for his practice. It should be noted that the dwelling is now rented to a physician for residential purposes only.

Chevy Chase Village notified appellees that this action would be in violation of the covenants binding on the property, but the weight of its logic obviously fell on deaf ears, for the doctor was not deterred. We are a more receptive audience, however, and shall reverse the lower court's decision. There are four questions presented for our consideration:

I. Was there sufficient evidence to establish a uniform general scheme or plan of development to entitle the appellants to enforcement of the covenants?

II. Was there an abandonment and failure of the original plan of development and such a change in the general characteristics of the neighborhood as to render the covenants unenforceable?

III. Were the appellants guilty of laches and therefore estopped from the enforcement of the subject covenants?

IV. Under the doctrine of comparative hardship should the court decline to enforce the restrictive covenants?

I

The first contention which the appellees make is that there was insufficient evidence to establish a uniform general plan of development as would entitle appellants to enforce the covenants. However, even if such a plan were absent it would not necessarily defeat their enforcement. The law in Maryland is well settled on this question. In Rogers v. State Roads Comm., 227 Md. 560, 564, 177 A.2d 850 (1962) we said: 'There need not be any general plan of development in order to make a restrictive covenant enforceable if it is imposed by a grantor on a single tract conveyed by him for the benefit of adjacent property retained by him.' This view was also expressed by Judge Offutt for the Court in McKenrick v. Savings Bank, 174 Md. 118, 128, 197 A. 580, 584 (1938), where it was said:

'* * * one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity. * * *'

See, e. g., Gnau v. Kinlein, 217 Md. 43, 141 A.2d 492 (1958); Turner v. Brocato, 206 Md. 336, 111 A.2d 855 (1955); Adams v. Parater, 206 Md. 224, 111 A.2d 590 (1955); Schlicht v. Wengert, 178 Md. 629, 15 A.2d 911 (1940) and Note, 2 Md.L.Rev. 265 (1938).

In the present case we need not decide whether there was a uniform general plan of development, though the evidence may well support such a finding. The covenants are enforceable in any event because of the specific language used in the deeds. The applicable law on this point was enunciated years ago and has remained basically unchanged. In Clem v. Valentine, 155 Md. 19, 26-27, 141 A. 710 (1928) our predecessors, quoting from Halle v. Newbold, 69 Md. 265, 14 A. 662 (1888), which referred to even earlier decisions, said:

"These cases very conclusively settle the law that the grantor may impose a restriction, in nature of a servitude or easement, upon the land that he sells or leases, for the benefit of the land he still retains; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, it may be enforced by the assignee of the grantor against the assignee (with notice) of the grantee.' It is to be noted that that case was one in which the covenant expressly provided that its terms should be binding on the assigns of both the covenantor and the covenantee, and it was there held that this enabled an assignee of the convenantee to enforce the restriction. * * *'

E. g., Rogers v. State Roads Comm., supra; Martin v. Weinberg, 205 Md. 519, 109 A.2d 576 (1954); Raney v. Tompkins, 197 Md. 98, 78 A.2d 183 (1951).

In the case before us, the covenants are clearly binding on the successive owners. Not only is there an express provision that the covenants 'run with the land,' but it also is explicitly stated that they are binding upon the grantee 'her heirs and assigns' and enforceable by the grantor, 'its successors and assigns.' As if this very lucid language were unclear, the deed defines an assignee as any person who obtains title 'mediately or immediately,' from the grantor. We need not pursue this question further, but if there are any lingering doubts, see Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957), and Middleton Realty v. Roland Park, 197 Md. 87, 78 A.2d 200 (1951), where similar problems were involved.

II

The second claim made by the appellees is that there has been an abandonment and failure of the original plan of development and a substantial change in the general characteristics of the neighborhood so as to render the covenants unenforceable. We have no quarrel...