Deitrick v. Leadbetter

• Decision Date: 08 April 1940
• Docket Number: Record No. 2186.
• Citation: 175 Va. 170
• Court: Virginia Supreme Court
• Parties: ELIZABETH C. DEITRICK v. I. N. LEADBETTER, M. B. BOWLES AND R. F. SANFORD.

Page 170

175 Va. 170

ELIZABETH C. DEITRICK v. I. N. LEADBETTER, M. B. BOWLES AND R. F. SANFORD.

Record No. 2186.

Supreme Court of Virginia, Richmond.

April 8, 1940.

Present, All the Justices.

1. BUILDING RESTRICTIONS — Enforcement — Doctrine of Clean Hands — Acts of One Complainant Not Chargeable against Others — Case at Bar. — In the instant case, a suit to enforce restrictive covenants in a deed and to enjoin defendant from using her home as a tourist home, two of the complainants were the owners of the property immediately adjoining on either side, and the third was the owner of property more distant from defendant's. Defendant contended that complainants did not come into court with clean hands because the home of the third complainant had been operated as a tourist home.

Held: That if the allegation were true, it could not be charged against the more immediate neighbors.

2. NUISANCES — What Constitutes — Tourist Home. — A tourist home conducted for a high type of people, such as lawyers, doctors, preachers, missionaries and judges, is not a nuisance.

3. BUILDING RESTRICTIONS — Restriction to "Residential Purposes" — Operation of Tourist Home — Case at Bar. — The instant case was a suit to enjoin defendant from using her home as a tourist home. Defendant's deed contained a covenant restricting the use of the land to residential purposes only.

Held: That the operation of a tourist home was a business, so that the lot was not being used for "residential purposes" only.

4. BUILDING RESTRICTIONS — Enforcement — Reasonable Restrictive Covenants in Deeds. — Whenever land is developed under a general scheme, reasonable restrictive covenants which appear in deeds to all lots sold are enforceable alike by the vendor and by the vendees and by their successors in title.

5. BUILDING RESTRICTIONS — Construction — Cover Things Forbidden by Necessary Implication. — While covenants restricting the use of land are to be strictly construed, they cover things forbidden by necessary implication, just as they cover things named with unmistakable exactness.

6. INNS AND INNKEEPERS — Definitions and Distinctions — Boarding Houses Not Private Residences. — Boarding houses are not private residences, and, on principle, it makes no difference if the boarder stays one day or two.

7. BUILDING RESTRICTIONS — Enforcement — Laches — Delay Insufficient to Constitute Laches — Case at Bar. — In the instant case, a suit to enjoin defendant from using her home as a tourist home, defendant contended that plaintiffs were estopped by acquiescing in a situation which might have been more promptly remedied. Defendant had constructive notice that the home which she had bought was subject to restrictive covenants forbidding its use for other than residential purposes, and she had actual notice in that she saw her abstract of title when she moved in. She bought the house in April, 1937, and made application in June, 1938, for permission to add to the house, at which time plaintiffs made protest. Prior to such time plaintiffs could not have known what defendant was doing and never had an opportunity to tell her that she was proceeding at her peril.

Held: That the principles of laches rather than estoppel applied, but that under the facts of the case plaintiffs had not slept upon their rights.

8. BUILDING RESTRICTIONS — Enforcement — Mere Acquiescence Not Abandonment. — Mere acquiescence does not constitute abandonment so long as a restrictive covenant remains of any value.

9. BUILDING RESTRICTIONS — Enforcement — Failure to Complain of Violations by Others. — The fact that the owner of property does not complain of the violation of a restriction by another or other owners against whom he is, or at least was, entitled to have the restriction enforced, which violation does not materially affect him in the enjoyment of his property, does not preclude him from enforcing the restriction against an owner whose violation of it does materially affect him.

10. BUILDING RESTRICTIONS — Enforcement — Change in Conditions — Change Insufficient to Make Enforcement Unnecessary and Undesirable — Case at Bar. — In the instant case, a suit to enjoin defendant from using her home as a tourist home, restrictive covenants had been imposed which prevented land in a certain development from being used except for residential purposes. Defendant contended that there had been a change in local conditions since her purchase of the property which made the application of the covenant unnecessary and undesirable. The changes consisted of the operation of several touist homes, a furnished apartment and a duplex house in the vicinity, but the essential character of the neighborhood was not changed at all — it was still preeminently a residential district.

Held: That there was no merit in the contention of defendant.

11. BUILDING RESTRICTIONS — Enforcement — Change in Conditions — Test. — No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement.

12. BUILDING RESTRICTIONS — Restriction to "Residential Purposes" — Enjoining Operation of Tourist Home — Case at Bar. — In the instant case, a suit to enjoin defendant from using her home as a tourist home, defendant's deed contained a covenant restricting the use of the property to residential purposes. At the time of her purchase of the property defendant had constructive notice of the covenant and she had actual notice in that she saw her abstract of title when she moved in. The trial court granted an injunction.

Held: No error.

Appeal from a decree of the Circuit Court of Henrico county. Hon. Julien Gunn, judge presiding.

The opinion states the case.

Gordon B. Ambler and Beecher E. Stallard, for the appellant.

H. M. Ratcliffe, Parker E. Cherry and William C. Miller, Jr., for the appellees.

HOLT, J., delivered the opinion of the court.

In this cause the defendant has been enjoined from using her home on Chamberlayne avenue in the city of Richmond as a "tourist home."

The Lewis Ginter Land & Improvement Company owned a large tract of land which lay partly in Richmond and which extended northward into Henrico county. This it undertook to develop and marked out the land into lots and blocks. It is known as North Ginter Park. Block J is north of the old city line and in it is the defendant's home. On much of this development certain restrictive covenants were imposed, deemed to be for the benefit of the vendor and of lot purchasers generally.

Restriction No. 3: "That no part of said premises or of the building that may be erected thereon, shall be used for any purpose or in any manner that will create a nuisance, or make such use of said premises injurious or offensive to a good residential neighborhood."

Restriction No. 5: "That said land shall not be used except for residential purposes."

Mrs. Deitrick bought her home in 1937 for a plain purpose and paid therefor $7,750.

"Q. Do you state that your own intention was to buy it as a tourist home and not as a private residence?

"A. Yes."

In it are four tourist bedrooms, together with a dining room and a kitchen in which she, her husband and child lived. At the time of her purchase she had only constructive knowledge of these restrictive covenants, and it was not until she moved in that she saw here abstract of title and had actual knowledge thereof. Due to crowded conditions and to want of space, she determined to add to the home and her plan was to add three rooms. Some difficulty was experienced in obtaining a permit, but afterwards she secured one to build two rooms, to be used by her family, who had theretofore, as we have seen, lived in the dining room and kitchen. To prevent this addition was one of the purposes of this suit.

R. L. Sanford, one of the plaintiffs, lives in Block J on the southwest corner of Chamberlayne avenue and Westbrook avenue. To the north and immediately adjoining him is the home of plaintiff, M. B. Bowles, and adjoining him to the north is the defendant. Bowles bought in 1930. Immediately to the north of Deitrick is that of the plaintiff, I. N. Leadbetter, who bought in 1931. The third lot to the north belongs to H. L. Kelly, who bought in 1927 and who in 1935 converted his home into one for tourists. Nine lots to the north is another tourist home, and on the northwest corner of Block J, thirteen lots away, is a tourist home which has been operated by Laura E. Sawyer since 1931. These lots apparently front 100 feet on Chamberlayne avenue and in this block is a duplex house and a furnished apartment. In Block E, which lies to the south of Block J and across Westbrook avenue, are two other tourist homes.

It is said that these plaintiffs do not come into court with clean hands — that the Sanford home itself had been operated as a tourist home. If that be true, it can not be charged against the more immediate neighbors, Bowles and Leadbetter.

Mr. Sanford purchased his home about two years ago. He seems to have confined his hospitality to his wife's relations — to his mother-in-law, his father-in-law and his b...