Clark v. Guy Drews Post of Am. Legion No. 88, Dep't of Wis.

• Decision Date: 15 June 1945
• Citation: 18 N.W.2d 322,247 Wis. 48
• Parties: CLARK et al. v. GUY DREWS POST OF AMERICAN LEGION NO. 88, DEPARTMENT OF WISCONSIN.
• Court: Wisconsin Supreme Court

247 Wis. 48

18 N.W.2d 322

CLARK et al.

v.GUY DREWS POST OF AMERICAN LEGION NO. 88, DEPARTMENT OF WISCONSIN.

Supreme Court of Wisconsin.

May 1, 1945.

Rehearing Denied June 15, 1945.

Appeal from a judgment of the Circuit Court for Manitowoc County; Henry A. Detling, Judge.

Action by H. M. Clark and his wife and others against Guy Drews Post of the American Legion No. 88, Department of Wisconsin, to enjoin defendant from making use of a house for any purpose other than a residence. From a judgment for defendant, plaintiffs appeal.-[By Editorial Staff.]

Affirmed.

This action was begun on May 11, 1944, by the plaintiffs against the defendant, to enjoin the defendant from making use of a certain house for any purpose other than a residence. The trial court found in favor of the defendant and from the judgment entered accordingly on November 17, 1944, the plaintiffs appeal.

The facts will be stated in the opinion.

Hougen, Brady & Murphy, of Manitowoc, for appellants.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for respondent.

ROSENBERRY, Chief Justice.

On August 8, 1925, the Schuette Real Estate Company, hereinafter referred to as the company, bought a tract of land in the northeastern part of the city of Manitowoc. The company platted the land into lots and blocks known as Lincoln Park Subdivision. The plat was approved and recorded before the sale of any lot was made. The subdivision can be roughly described as made up of three ordinary sized city blocks designated blocks 3, 4 and 5, containing 62 medium sized lots, and 21 additional medium sized lots in blocks 1, 2 and 6. The land south and west of the subdivisionwas a residential section; that to the south was the north end of the most desirable residence property in Manitowoc. No restrictions nor unusual planning of any kind were indicated on the plat.

On May 15, 1926, the company deeded to D. C. Bleser and Myrtle J. Bleser, his wife, lots 7, 10, 11 and 14, block 4, being the west half of the property involved in this action. The deed contained the following covenant: ‘It is hereby agreed by and between both of said parties that the premises are to be used only for residential purposes and no residence to be constructed thereon at an actual cost of less than $10,000.00.’

The grantees carried out their part of the agreement and built upon the premises a large home costing several times $10,000.

On April 11, 1929, the company deeded to Schuette Construction Company lots 8, 9, 12 and 13, block 4, being the east half of the property involved in this action. The deed contained the following covenant: ‘It is hereby mutually agreed by both parties that the premises shall be used for residential purposes only.’ The construction company subsequently deeded these lots back to the company without a restrictive covenant.

On November 14, 1930, the company deeded these lots to one Earl O. Vits. The deed contained the following covenant: ‘It is mutually agreed that the above premises shall be used for residential purposes only.’

On August 12, 1931, Vits deeded the same to D. G. Bleser and Myrtle Bleser, his wife, without restrictive covenant. The Bleser home was built on lots 7 and 10. There are no buildings on the other lots but the premises have been landscaped and improved to conform to the rather elaborate dwelling.

Some time after August 12, 1931, D. C. Bleser died and his wife became the sole owner as surviving joint tenant.

On March 8, 1944, Myrtle S. Barrie, formerly Bleser, deeded the entire premises as a gift to the defendant, American Legion, as a memorial to her son, Daniel B. Bleser, killed in action in the present World War. The deed provides that the premises shall revert to the grantor or her heirs in the event the grantee ceases using the premises for its purposes. The deed contained no restrictive covenant.

It is not denied that the defendant intends to use the premises for its purposes which by its articles are as follows: ‘The purpose of the corporation shall be: to promote peace and good will among the peoples of the United States and all nations of the earth; to preserve the memories and incidents of the great war of 1917-1918; to cement the ties of love and comradeship born in service; and to consecrate the efforts of its members to mutual helpfulness and service to their country. * * * The corporation hereby created shall have the following powers: to have perpetual succession with power to sue and be sued in courts of law and equity; to receive, hold, own, use, and dispose of such real estate and personal property as shall be necessary for its corporate purposes.’

It appears without dispute that the defendant expects to use the place for the rehabilitation of returning soldiers and as a club house for its members.

The plaintiffs are the owners of lots located in different sections of the plat and bring this action to restrain and enjoin the defendant from using the premises or any part thereof for any other use than a single family residence and for such other and further judgment, order and relief as upon the facts shall be deemed just and equitable.

The trial court found: ‘That there are no words in the deed from the company to D. C. Bleser and his wife to the effect that the heirs or assigns of either party are bound by the restrictive agreement; that the restrictions mentioned in said deed are only upon the...