Crawford v. Senosky

• Decision Date: 05 February 1929
• Citation: 274 P. 306,128 Or. 229
• Parties: CRAWFORD ET AL. v. SENOSKY ET AL.
• Court: Oregon Supreme Court

274 P. 306

128 Or. 229

CRAWFORD ET AL. v. SENOSKY ET AL.

Supreme Court of Oregon

February 5, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; Orlando M. Corkins Judge.

Suit to enforce building restrictions by James W. Crawford and wife and others against C. M. Senosky and wife and others. From a decree for plaintiffs, defendants appeal. Affirmed.

This suit is brought to enforce building restrictions in deeds to certain property situate in block 39, Rose City Park Portland.

The plaintiffs assert that, in accordance with, and pursuant to a general plan of development intended to benefit the entire tract of land, certain building restrictions were imposed upon blocks 32 to 47, Rose City Park, by the original owners and predecessors in interest of these plaintiffs and defendants in the deeds executed by them to their immediate grantees, which deeds were duly recorded in Multnomah county Or. They contend that the restrictions were reasonable, and were necessary to the successful development of this addition into a high-class residential district; that the same were incorporated into, and became, and now are a part and parcel of, the titles of the owners of property therein, and that by virtue thereof, the use of the property described in the respective deeds of conveyance is, until March 1, 1932, restricted to residential purposes. They aver that on January 28, 1927, the defendants applied for and secured from the city of Portland a permit to erect a shed and a gas station for the servicing of motor vehicles upon lots 1 and 2, block 39, Rose City Park, and are proceeding with the construction thereof, in violation of the restrictions above set out.

The defendants, answering, contend that there was no general plan in the imposition of the building restrictions such as to justify their existence; that conditions have changed to the extent that the restrictions should be set aside; and that the plaintiffs, by acquiescing in certain other violations, are estopped to object to the improvement proposed by the defendants. As to lot 1, block 39, they aver that it was sold for taxes, and that they thereafter took title thereto, free and clear of all restrictions.

As a result of the trial, defendants were restrained and enjoined from further proceeding with the construction of the service station upon the property in question, and from putting that property to any use other than for residential purposes until March 1, 1932. From this decree, the defendants appeal.

John F. Logan, of Portland (J. J. Fitzgerald, of Portland, on the brief), for appellants.

Howard P. Arnest, of Portland (James W. Crawford, of Portland, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

That injunction is the proper remedy for enforcement of a valid restriction imposed on the use of land is well settled. Duester v. Alvin, 74 Or. 544, 145 P. 660; Grussi v. Eighth Church of Christ, Scientist, 116 Or. 336, 241 P. 66; Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A. L. R. 837; Menstell v. Johnson, 125 Or. 150, 262 P. 853, 266 P. 891, 57 A. L. R. 311.

In a discussion of the case of Duester v. Alvin, supra, this court, speaking by Mr. Chief Justice Moore, said, at page 552 of 74 Or. (145 P. 663): "The covenant in each deed executed by the corporation was made in pursuance of a general scheme adopted by it for the purpose of preserving the addition as desirable residence property. The restriction created an equitable servitude which must be regarded as of value to the whole property. It was inserted in the deeds for the benefit of those who became owners of separate parcels, and is binding in equity on a grantee of any portion of the premises who secured a title thereto with knowledge of such restriction."

Restrictions on the use of real property, however, will not be enlarged or extended by construction; and all doubts must be resolved in favor of its free use, and against restriction.

The defendants claim that lot 1, block 39, was sold for taxes, and that they thereafter took title thereto, free from all liens and clear of all building restrictions.

Section 4325, Oregon Laws, reads, in part: "Such liens [tax liens] shall have priority to and be fully paid and satisfied before any and every judgment, mortgage or other lien or claim whatsoever, except the lien for a tax for a subsequent year."

Section 4355 provides for deed on foreclosure. Section 4371, relating to sale of lands bid in by the county for taxes, reads: "As soon as it is practicable after such sale the sheriff shall make to the respective purchasers deeds for the several parcels of land sold to them, without charges other than the price paid for the lands, and such deeds shall vest in the purchasers title in fee thereto, and such title shall be superior to any lien, claim or charge whatever against such lands, except the lien of tax certificate of delinquency issued to an individual, subsequent to that for which the land was sold, and the taxes for the current year."

But the foreclosure of a tax lien does not cut off easements that have been carved out of one property for the benefit of another. See Tax Lien Co. v. Schultze, 213 N.Y. 9 106 N.E. 751, L. R. A. 1915D, 1115, Ann. Cas. 1916C, 636. It was contended in that case, as here, that if there were incumbrances or easements in favor of abutting owners or incumbrancers, and affecting the tax lot sold to the purchaser, such incumbrances or easements were effectually cut off by the judgment of foreclosure and sale, and that the judgment of foreclosure and sale...