Curtis v. Schmidt

• Decision Date: 20 June 1931
• Docket Number: No. 40821.,40821.
• Citation: 212 Iowa 1279,237 N.W. 463
• Parties: CURTIS v. SCHMIDT.
• Court: Iowa Supreme Court

212 Iowa 1279

237 N.W. 463

CURTIS

v.SCHMIDT.^a1

No. 40821.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Johnson County; H. D. Evans, Judge.

Action in equity, seeking a permanent injunction restraining the defendant from violating a restrictive covenant in a deed. The court found for the plaintiff. The defendant appeals. The facts appear in the opinion.

Affirmed.Henry Negus and E. A. Baldwin, both of Iowa City, for appellant.

Davis & Davis, of Iowa City, for appellee.

GRIMM, J.

Prior to October 2, 1911, the plaintiff owned, in fee simple, certain real estate located immediately south of Iowa City, Iowa. The property is bounded on the east by the Iowa river and on the west by state highway No. 161. On October 2, 1911, plaintiff and her husband, Ira Curtis, conveyed, by warranty deed, to the defendant, Charles Schmidt, a strip from the north portion of said piece of land, which strip extended from the highway to the river. The deed contained the following restrictive covenant: “Grantee hereby covenants and agrees to remove barn on said premises within one year from date, and that no building shall be erected by him, his heirs or grantees on said premises East of a line parallel with the West line of said premises and located 100 feet East of the East line of the highway in front thereof.”

The property sold has approximately 160 feet frontage on said primary highway No. 161, and is approximately 140 feet deep on the north and 300 feet deep on the south line. The south line of the plaintiff's dwelling house is about 30 feet from the division fence. Some sheds and outhouses have been built on the west end of the property, adjacent to the division fence between the two properties. The river referred to is the Iowa river, and flows in a southeasterly direction, east of the properties in question. The barn referred to in the restrictive clause hereinbefore quoted had been used as a slaughter house, and it was removed.

The plaintiff resides on the portion of the original tract not sold to the defendant, and, in addition to using the premises as a residence, it is also used for greenhouse purposes.

On February 1, 1929, the plaintiff filed her petition in equity in the district court of Johnson county, Iowa. A temporary injunction was issued on March 8, 1929. Thereafter a stipulation was entered into, without prejudice to the rights of the parties, whereby the defendant was permitted to temporarily use the structures in controversy for the purpose of getting out some sand and gravel for a building contract then in progress in Iowa City.

On May 16, 1930, an amended and substituted petition was filed. The plaintiff's pleadings allege in substance that the restrictive covenant was placed in the deed for the purpose of restricting and preventing the grantee named in said deed, or any person or persons by, through, or under him, from placing any building upon said premises so conveyed, east of the 100-foot line, that the restrictive covenant was a part of the consideration for the deed, and that it was understood between the plaintiff and the defendant that the covenant was to prevent the erection of any structure on the restricted area conveyed.

The defendant answered by way of general denial, with some affirmative allegations, which need not be here considered.

It appears, without dispute, that several structures have been erected by the defendant on the defendant's property east of the 100-foot line. These are structures used by the defendant in operating a sand and gravel business. The sand is sucked out of the river bed, and elevated up to certain portions of the structure, where it is permitted to pass over screens, and is thus prepared for sale as a merchantable product. One of the structures is described by a civil engineer in the following terms: “The structure has a wooden superstructure raised on a substantial concrete foundation, which foundation is about 23 feet in an easterly-westerly directionand approximately 12 feet off the main part of the foundation and frame approximately north-south direction extending southerly from the main part of this foundation are walls acting as bins for the discharge of the separated materials. The structure is about 28 feet high on the north side of the structure to the top of the main part with an elevator extending about 8 feet higher above the main part. * * * The superstructure is a wooden superstructure housing the machinery for separating the materials. * * * The hopper is a building in which sand is discharged to be loaded into trucks.”

There is on the premises a large derrick, with hoisting machinery, used for elevating and swinging clamshell buckets full of sand.

The defendant, Charles Schmidt, has the following to say in reference to some of these buildings: “I constructed a screening plant along the river bank there during the early part of 1929. I first built up a concrete wall to get up above the high water and then put a partition in to make two bins for sand to drop down into, and on top of the wall I have a wooden structure with a screen and a rock crusher on it.”

Numerous photographs of these structures are introduced in evidence. The trial court found for the plaintiff and directed the removal of the sand screen and cement foundation and all buildings and structures erected east of the 100-foot line. The defendant appeals.

[1] I. One of the questions lying at the threshold of this case is, What was the purpose and intention of the parties in inserting the restrictive covenant contained in the deed? The plaintiff's husband, Ira Curtis, testified on the subject as follows: “The restrictive covenant was incorporated in said deed at the instance and request of Mrs. Curtis and myself. We insisted upon that reservation or reservation being incorporated in Exhibit ‘F’ (the deed) so there would be no obstruction of the river view. It was also detrimental to the plants.”

The witness, Tom Davis, who was the real estate agent who negotiated the original transaction between the plaintiff and the defendant, testified on the subject as follows: “The provision or restriction in the deed conveying this property to Charles Schmidt by Mary Curtis and her husband regarding buildings east of a one hundred foot line was one of the provisions of the sale suggested by Mr. Curtis. His reason was he didn't want the view from the river obstructed by any building or anything of that sort.”

On cross-examination he said: “Curtis' only reason was it would interfere with the view. There was an old slaughter-house there and that was to be torn down.”

All this appears to have been clearly understood by the defendant. He testified upon the subject, among other things, as follows: “I read it (the restrictive covenant) then and understood what it said * * * I read that no buildings were to be erected east of a line * * * and I knew what that meant. I knew that restriction was in the deed when I accepted it which was a provision that I should not locate any building upon that portion of that ground. I read and understood it at that time.”

In Bauby v. Krasow, 107 Conn. 109, 139 A. 508, 510, 57 A. L. R. 331, the court had under consideration a restrictive reservation in a deed. The court said: “In the absence of an express statement in the covenant itself the intention of the parties must ordinarily be determined as a matter of fair inference from the language of the covenant, the nature of the restriction granted or reserved, and all the circumstances surrounding the transaction.”

Manifestly, if the objections to the barn or slaughter house arose by reason of the use to which it had been put, a very simple restrictive covenant preventing the use of any of the buildings on the said premises for slaughter house purposes would very efficiently convey that idea. The fact that the restriction in the deed is not as to the use to be made of the building, but that the one building then on the restricted area shall be removed, and no other buildings shall be erected, is very persuasive evidence that the grantors desired to protect the view across the restricted area. There is nothing in the record to warrant the belief that the grantors were only seeking to get rid of a building used for slaughter house purposes or to get rid of the particular building which had been used for slaughter house purposes. The covenant expressly prohibits the erection of any buildings on the restricted area. On the whole record, we think it very clearly appears that the parties intended by the restrictive covenant to obtain and retain an unobstructed view north and easterly from the plaintiff's premises over the restricted area to the river and beyond.

[2][3] II. One of the principal contentions of the appellant is that the structures found upon the restricted area are not buildings. This question is the subject of a somewhat elaborate note in 49 A. L. R. p. 1364. The text contains the following terse expression, which we think clearly states the rule: “Generally, as will appear from the analysis of the cases set out in this annotation, there is a strong tendency on the part of the courts to construe the term ‘building,’ as used in restrictive covenants, with a view towards giving effect to the manifest intention and purposes of the parties; and, to that end, to extend the term so as to cover some structures or conditions that would not fall within the strict lexicographical definition of the word ‘building.’ ”

In Nussey v. Provincial Bill Posting Co., [1909] 1 Ch. (Eng.) 734, 2 B. R. C., 425, 16 Ann. Cas. 222--C. A., a structure 156 feet long and 15 feet high, upon which the trade of bill posting was carried on, was considered a building. To the same effect are the following English cases: Pocock v. Gilham, [1885] 1 Cab. & El. (Eng.) 104; Foster v. Fraser, [1893] 3 Ch. (Eng.) 158.

In MacGregor v. Linney (1905) 27 Ohio Cir. Ct. R. 490, it was held that a board fence 8 or more feet in...