Christ's Methodist Church v. Macklanburg
| Decision Date | 04 March 1947 |
| Docket Number | 32746. |
| Citation | 177 P.2d 1008,198 Okla. 297,1947 OK 63 |
| Parties | CHRIST'S METHODIST CHURCH v. MACKLANBURG et al. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.
Action by Christ's Methodist Church, a corporation, against Pansy E. Macklanburg and others, to establish the right of plaintiff to erect and maintain a church in an addition restricting use of realty for other than residential purposes. From an adverse judgment plaintiff appeals.
Affirmed.
Syllabus by the Court.
1. Covenants restricting the use of real property, although not favored, will nevertheless by enforced by the courts, where the intention of the parties in their creation is clear, and the restrictions or limitations are confined within reasonable bounds. In construing such covenants, effect is to be given to the intention of the parties as shown by the language of the instrument, considered in connection with the circumstances surrounding the transaction and the object sought to be accomplished by the parties.
2. Where, in pursuance of a plan, a section of an addition is designed to be purely residential in character and, in order to make it more attractive as such, the use of the lots therein is by the terms of the plat and dedication restricted to residential purposes, held, such restriction is not unreasonable in contemplation of law.
3. The phrase 'All lots in this plat are restricted to residences only', is clear and explicit in excluding the use of lots for any purpose other than residential, and the use of lots for the erection and maintenance of a church thereon is excluded by the terms of such restriction.
4. Where, by the terms of a restriction limiting the use of lots to residential purposes, the use thereof for church purposes is excluded, such restriction is not void as against public policy.
Dudley Duvall & Dudley, and J. B. Dudley, all of Oklahoma City, for plaintiff in error.
Halley Douglass & Felix, of Oklahoma City, for defendants in error.
The parties to the appeal occupy the same relative position as in the trial court, and will be herein referred to as plaintiff and defendants.
The question here involved is the effect of a restriction against use of lots in a platted addition for other than residential purposes and particularly whether a church as purchaser of the lots is entitled to erect and maintain thereon a church notwithstanding such restriction. The restriction involved is applicable to lots in Lincoln Terrace Addition, an addition to Oklahoma City, comprising an acreage of 97 1/2 acres subdivided into streets, avenues and 23 city blocks. A triangular block at the intersection of avenues near the center is dedicated to the city for park purposes. The lots in the other blocks are all restricted to residential purposes except certain lots and blocks excepted therefrom by the express terms of the restriction. The Addition was laid out and platted by the filing of three plats, each covering parts thereof, on January 28, 1926, November 10, 1926, and February 26, 1927, respectively. The restriction covering Blocks 7 to 23, which includes the lots here involved, was included in the plat filed in January 1926, and is in the following words: 'All lots in this plat are restricted to residences only, except Lots 10 to 17, inclusive, Block 17, on which apartments may be erected, and all of Block 20 on which retail business buildings or apartment houses may be erected.' In each of the other plats, which together covered the balance of the area, there are the following restrictions:
'All lots in this plat are restricted to residences only.'
The Addition is almost wholly developed and has an estimated population of 5,000. The improvements heretofore made are in complete accord with the restrictions.
Block 10 of the Addition lies immediately south of Nineteenth Street and immediately east of Lincoln Boulevard. The south tier of the lots in said block which face south on Eighteenth Street are owned and occupied by the defendants for residential purposes. The north tier of the lots therein whereon there are no improvements are the lots involved herein.
During the latter part of 1945 the plaintiff, a corporation organized for religious purposes, acquired title to said north tier of lots in Block 10 and, having received municipal permission to erect thereon a building for public worship at an estimated cost of $200,000, posted and advertised its intention so to do. Defendants, through counsel, called plaintiff's attention to the plat restrictions and, insisting that such erection would be unlawful, warned that injunctions would be sought if erection of the church building were attempted. Thereupon plaintiff instituted this action.
The plaintiff's petition recites the foregoing facts, the fact that there is no other suitable site within the Addition, that such site would afford a convenient place for its congregation consisting of persons residing both within and without the Addition. The prayer of the petition is to judicially establish the right of the plaintiff as against said restriction to erect and maintain on the premises the contemplated church structure and quiet plaintiff's right to do so against the claims of the defendants.
The trial court sustained the demurrer of defendants to the petition upon the ground the same did not state a cause of action, and plaintiff electing to stand on its petition its action was dismissed. It is from the order of dismissal plaintiff prosecutes this appeal.
There are but two basic questions involved in this appeal. First, is the proposed use of the premises for church purposes within the inhibition of the restrictive provision under which title thereto is held and, if so, second, is the provision void or unreasonable to the extent it prohibits the plaintiff from erecting thereon and maintaining the proposed edifice for public worship.
Concerning the first question, it is urged on behalf of plaintiff that the use of lots for churches is not expressly prohibited and, therefore, the fact of their prohibition can arise only by implication which, being inconsistent with the applicable rule of strict construction, will not be indulged by the court. It is recognized that this court has repeatedly held that while covenants restricting the use of real property are not favored they will nevertheless be enforced by the courts where the intention of the parties is clear in their creation and the restrictions or limitations are confined within reasonable bounds. Plaintiff quotes from the opinion of this court in Southwest Petroleum Co. v. Logan 180 Okl. 477, 71 P.2d 759, 763, wherein the court construed the reservations involved herein, the following: 'The phrase 'All lots in this plat are restricted to residences only' excludes all other uses upon the land, and is clear and unambiguous. Under the natural and common sense meaning of the term but contends it is not controlling here. It is urged that the expression is dictum when applied to the facts of the instant case.
The basis of the conclusion in the cited case is the holding that by the terms of the restriction there was an express exclusion of all uses other than the prescribed use. The proposed oil development was held to be excluded not because it was oil development but because such use was not residential. The standard there used is no less applicable here. And, if applied, it would necessarily follow that the use for church purposes is excluded because not residential in character.
All the contentions made herein material to the intention as expressed in the restrictive language were presented and considered in the quoted case. We adhere to the construction there applied and hold that the restriction by force of the language used denies the right to use the premises for church purposes.
Plaintiff's argument pertinent to the second question is briefed under the following proposition: ...
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