Duester v. Alvin

• Decision Date: 19 January 1915
• Citation: 74 Or. 544,145 P. 660
• Parties: DUESTER ET AL. v. ALVIN.
• Court: Oregon Supreme Court

145 P. 660

74 Or. 544

DUESTER ET AL. v. ALVIN.

Supreme Court of Oregon

January 19, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Suit by F. X. Duester and others against P. A. Alvin. Decree for complainants, and defendant appeals. Affirmed.

This is a suit by F. X. Duester and H. C. Raven, for themselves and all other persons who might wish to join them, against P. A Alvin, for a mandatory injunction to require him to remove from his real property a building, and also to set back further from the line of a street the foundation for another structure to be erected on the premises. The facts are that E. Henry Womme, the owner in fee of a tract of real property in Multnomah county, Or., caused the land to be surveyed and platted as Overlook addition to the city of Portland dedicating to the public all the streets, alleys, and boulevards noted on the plat, which map was duly recorded. The plat did not indicate reservations for any purpose except the right of the dedicator to construct, maintain, and operate street railways on, over, and through some of the specified highways. Womme from time to time conveyed parts of the land so platted to the Overlook Land Company, a corporation, which sold and conveyed lots in that addition as purchasers thereof could be secured. The deeds so executed by the company contained a clause which reads:

"This conveyance, however, is made with the further consideration that the grantee ______, heirs or assigns, will not use said premises for any other than resident purposes; will not erect more than one residence on each and every lot thereof; will not construct any building nearer to the front line of any street than 20 feet, nor erect any residence on said premises, the first cost of which shall be less than $2,000 and that any violation of such covenants, or either of them shall work a forfeiture of the estate of the said grantee, ______, heirs or assigns, in and to the said premises."

The corporation, on June 15, 1907, executed to Hans Holmberg and Theresa Holmberg, his wife, a deed to lot 9 in block E in that addition; the conveyance being subject to the foregoing building restrictions, except that two residences were permitted to be erected on the premises. The side lines of this lot as platted extend at right angles from Overlook boulevard on the easterly end to an acute angle on Melrose drive at the westerly end, the premises being 50 feet wide, its northerly line 185 feet and its southerly line 153 feet. The greater part of the boulevard named is parallel with the westerly border of Overlook addition; that boundary as run from the northwest corner of the tract being south 37~ 52' 15"' east. All blocks east of Overlook boulevard, except such as are rendered angular by that highway, extend north and south, consisting of lots numbered from 1 to 8, inclusive, on the east side and from 9 to 16 on the west. Each of such lots is 50 feet from north to south and 100 feet from east to west. The blocks border upon avenues extending north and south, the first of which is Maryland avenue on the east, and upon streets extending east and west. The lot conveyed by the company to Holmberg and his wife being so much larger than ordinary, the corporation granted permission to erect upon the premises two residences, but required each dwelling to comply with the restrictions hereinbefore mentioned. Holmberg and his wife, on March 6, 1908, conveyed the lot to F. P. Nelson and Emma Nelson, his wife, who, reserving the easterly 80 feet of the premises, sold and conveyed the remainder on May 11, 1912, to the defendant, P. A. Alvin, but in the deed evidencing a transfer of the title Nelson and his wife inadvertently omitted the restricting covenant referred to. Alvin, pursuant to authority obtained from a representative of the Overlook Land Company to erect on the premises a garage, put up near the back part of the land so conveyed to him, at an outlay, as alleged in the answer, of $750, a building which was finished inside as a dwelling and which he occupied as a residence. He also procured plans for a house 28 feet wide and 48 feet long to be built on his land; the easterly end of the structure joining the smaller building and the westerly end, including a proposed builtin porch, the upper portion of which was to be finished as a part of the house, coming to a point, at its closest distance of 5 feet 4 1/2 inches at an acute angle with Melrose drive. He excavated a basement for the entire house, except the porch, and was putting in cement foundation walls when this suit was instituted.

The complaint charges, in effect, that the Overlook Land Company, intending to convert such addition into an exclusive and desirable residence district, adopted a general plan and scheme of building restrictions for the entire addition, except a few lots in blocks ______, and, to evidence a transfer of the legal title to such real property, approved a general form of deed, containing the restrictive covenants hereinbefore quoted; that the plaintiffs have purchased from the company lots in Overlook addition and are the owners and holders of the legal title thereto; and that they and other purchasers of lots in such addition had knowledge of, and relied upon, such general scheme and plan of improvement for the benefit of the entire addition, by reason whereof a greater consideration was paid for such real property than would otherwise have been given without such restrictions, and they have severally erected valuable dwelling houses in compliance therewith. The complaint sets forth the facts, in substance, as hereinbefore stated, and avers that the defendant purchased his part of a lot with knowledge of such general plan and scheme, and had been notified thereof and requested to remove the structure erected on his premises so as to conform with the requirements of such plan, but that he had refused to comply therewith, and that the plaintiffs had no plain, speedy or adequate remedy at law.

A temporary restraining order was granted when the suit was commenced. The defendant moved to dissolve the injunction, and also demurred to the complaint on several grounds, but stipulated, however, that the motion might be denied and the demurrer overruled, reserving the right to present at the trial the legal questions so raised. The answer denied the material allegations of the complaint, and for a further defense averred, in effect, that the corporation did not at any time place a general restriction over the entire addition, but reserved to itself the right originally to deal with the real property therein to suit itself and to sell and convey lots for business purposes without any restrictions; that the corporation has permitted numerous violations of such restrictions, as to the limit from the street lines and the cost of buildings, and there never was any general plan or scheme to beautify the addition or to provide uniformity with respect to the distance of buildings from the street or to the minimum cost of residences; that defendant's house, as located upon the ground, will not obstruct the view, or interfere with the enjoyment of plaintiffs' property; and that he had been damaged by the temporary injunction issued herein.

The reply put in issue the allegations of new matter in the answer, and, the testimony having been taken, the court made findings of fact and of law as alleged in the complaint, and granted the relief therein prayed for, from which decree the defendant appeals.

W. A. Leet and L. D. Mahone, both of Portland, for appellant. S. C. Spencer, of Portland (H. J. Parkison, Harry Yanckwich, and E. V. Hillius, all of Portland, on the brief), for respondents.

MOORE, C.J. (after stating the facts as above.)

It is contended that the complaint fails to show any legal right on the part of the plaintiffs to maintain this suit, for which reason their primary pleading does not state facts sufficient to entitle them to equitable interference, and that an error was committed in receiving any evidence on their part, to the introduction of all of which objections were made on that ground and exceptions saved.

It will be remembered that the restrictions imposed by the Overlook Land Company upon each grant of real property in Overlook addition, except as to lots set apart for business purposes, provided that a violation of any of the covenants contained in the deeds should work a forfeiture of the estate of the grantee, his heirs or assigns, in or to the premises. It will thus be seen that the corporation reserved to itself a possible reversionary interest in the several lots conveyed, whereby the conditional estate granted might become forfeited for a violation of any of the restrictions prescribed. Such provision in the deeds was only a partial restraint, incident to a transfer of the title to real property, and is valid. Seeck v. Jakel, 141 P. 211.

Covenants relating to a subject-matter not in esse, as for the building of a fence or the erection of a structure upon designated real property are personal, and do not run with the land so as to bind assignees, unless they are expressly named in the deed. Brown v. Southern Pacific Co., 36 Or. 128, 58 P. 1104, 47 L. R. A. 409, ...