Cole v. Seamonds
| Decision Date | 28 September 1920 |
| Docket Number | 4019. |
| Citation | 104 S.E. 747,87 W.Va. 19 |
| Parties | COLE ET AL. v. SEAMONDS ET AL. |
| Court | West Virginia Supreme Court |
Submitted September 14, 1920.
Rehearing Denied Nov. 30, 1920.
Syllabus by the Court.
Where an owner of land conveys part of it to another, and by a covenant or clause in the deed agrees not to use the remaining portion thereof for certain enumerated purposes and the instrument imposing the restrictions and the surrounding circumstances clearly indicate that the primary purpose of the agreement is not merely to benefit the covenantee in his particular use of the land, but to benefit the land itself, as by improving the physical and moral conditions of the vicinity, limiting the enjoyment of one parcel of land in favor of another, and pro tanto enlarging the enjoyment of the other, such contract creates an equity which attaches to the property to be burdened in favor of that to be benefited, and which a court of chancery will enforce by injunction against all subsequent owners, not purchasers for value without notice, provided the agreement does not infringe upon some principle of public policy, and the circumstances have not so changed as to defeat the original purpose of the restriction and render nugatory ineffectual, and unduly burdensome its further enforcement.
There is no valid difference in principle between a restrictive covenant made by a vendee for the benefit of land retained by the vendor, and one made by a vendor touching his remaining land for the benefit of that conveyed to his vendee.
It is not material whether such restrictive covenants do or do not in law constitute covenants running with the land. The theory of their enforcement in equity is that it is unconscionable and inequitable that a vendee be permitted to use land in a manner inconsistent with a contract entered into by his vendor, and with notice of which he purchased; his conscience is equally bound with that of his vendor, and he acquires only such rights as his vendor himself can transfer.
Actual notice of such restrictive covenants is not essential. Such constructive notice as is afforded by a duly recorded instrument in the vendee's chain of title is sufficient.
Ordinarily the limitations imposed by such restrictive covenants tend towards the physical or moral advantage of the covenantee's property, by improving the appearance of the properties in the immediate vicinity, and by increasing the quiet and elevating the moral tone of the community; but where the restrictions tend only indirectly to achieve these ends, and disclose a purpose primarily to benefit the covenantee in his particular use of the land, rather than to improve or preserve the physical condition of the land itself and the moral conditions surrounding it, a court of chancery may treat such agreement merely as a personal covenant between the parties, and not as one creating an equity in the nature of a property right.
Any doubt respecting the purpose, propriety, or validity of restrictions limiting the enjoyment of property ordinarily is resolved in favor of its free and unrestricted use.
Appeal from Circuit Court, Logan County.
Suit for injunction by Albert H. Cole and others, trustees, etc against Dixie (Browning) Seamonds and others. Decree for plaintiffs, and defendant Seamonds appeals. Decree reversed injunction dissolved, and bill dismissed.
E. L. Hogsett, of Logan, for appellant.
Fitzpatrick, Campbell, Brown & Davis, of Huntington, for appellees.
By deed bearing date July 7, 1888, John R. Browning granted unto Stuart Wood all the minerals contained within a tract of 2,240 acres of land located on Main Island creek, Logan county, and conferred on the grantee full, liberal, and comprehensive mining rights and privileges upon and under the surface of the tract, all of which Wood conveyed to J. O. Cole and Clinton Crane by deed bearing date June 4, 1913. Out of the surface and as part of it the elder Browning conveyed to his son Reece 156 acres, subject to the mining rights and privileges theretofore granted to Wood. On November 26, 1913, Reece Browning conveyed to Cole and Crane, owners of the minerals thereunder, the surface of the 156-acre tract theretofore granted to him by his father, excepting and reserving from such conveyance, however, 2 acres of the surface. Respecting the 2 acres the deed provides:
"And the parties of the second part, pursuant to the said contract of sale, hereby release said 2 acres of land from the operation of any rights for mining purposes, or rights of way mentioned in the said deed from John R. Browning and wife to the said Stuart Wood; and in consideration of the said release, the said parties of the first part covenant and agree to use the said 2 acres of surface land for residence and agricultural purposes only, and covenant and agree for themselves, their executors, administrators, and assigns, not to conduct or suffer to be conducted on said 2 acres of surface any mercantile business, and that no intoxicating drinks of any character are to be sold or kept thereon; and this covenant shall run with said 2 acres of surface land."
On January 22, 1916, Reece Browning and wife, for a valuable consideration, conveyed one-sixth of an acre of the 2-acre tract to the petitioner, Dixie Browning (now Seamonds), their daughter, without reservation, exception, or limitation of any sort, except that she should not sell and convey the parcel without their consent. Petitioner says she did not at that time have actual knowledge of the restrictions contained in the Reece Browning deed to Cole and Crane, though it constituted part of her chain of title, having theretofore been duly recorded.
By virtue of these conveyances Cole and Crane became vested with the title to the surface of the 154 acres and of the minerals underlying the tract of 2,240 acres purchased from Stuart Wood, and they also owned a larger tract or tracts in one contiguous body, likewise situated on Main Island creek and containing approximately 28,000 acres. As a result of coal-mining operations on this acreage, the town of Omar, situated on the 154-acre tract, grew and prospered. On December 6, 1916, Cole and Crane conveyed their entire holdings to plaintiffs, to be by them held in trust pursuant to the provisions of a written declaration of trust of the Cole and Crane real estate trust executed by the parties concurrently with the deed.
Thereafter, and in violation of the restrictive covenants contained in the deed from Reece Browning to Cole and Crane, petitioner rented a building situate on the one-sixth acre conveyed to her to M. A. Hindy, a codefendant, who is conducting therein a general mercantile store, and let another building on said parcel to codefendant Nick Gemerous, who is using the same as a "hot dog" and soft drink establishment, both presumably being conducted in competition with the five commissaries owned and operated by the coal company at various points in the town of Omar. For the purpose of enjoining such action on the part of defendants, in violation of the covenants restricting the use of the 2 acres retained by Browning, out of which the one-sixth acre owned by petitioner was carved, plaintiffs as successors in title of Cole and Crane, the covenantees, instituted this suit, and obtained the injunction which petitioner in this proceeding seeks to dissolve.
It is unnecessery to enter into a discussion of the vexing and technical rules relating to covenants running with land, for we are of opinion that a court of equity should not exert its coercive powers under the situation presented in this case, irrespective of whether the provisions of the deed from Reece Browning to Cole and Crane be considered technical covenants running with the land, or as instances of that general class of restrictive covenants or equitable servitudes, limiting the use of real estate, which bind purchasers who take with notice thereof, whether they fall within the class of such technical covenants or not. The latter question more properly arises in an action at law to recover damages for the violation of such agreements.
Covenants restricting the use of land are frequently incorporated in deeds for the purpose of benefiting land retained by the grantor, or, as in this case, land conveyed to the grantee. Such restrictions are recognized and enforced in courts of equity, even as against subsequent purchasers with notice, when it clearly appears that the intention of the parties was to limit or restrict the use of one parcel of land for the benefit of another, provided the enforcement of such restrictions will not violate any principle of public policy. It is wholly immaterial whether the restrictions are technically such as "run with the land."
In the leading and pioneer case of Tulk v. Moxhay, 2 Phillips, 774, 776, this question is discussed at length:
The existence and applicability of this rule, without regard to the question whether or not the covenant runs with the land has heretofore been recognized by this court in the case of Robinson v. Edgell, 57 W.Va. 157, 49 S.E. 1027, and the general proposition is so well settled that only a few additional authorities need be cited. 2 Tiffany,...
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