Duffy v. Mollo

• Decision Date: 13 April 1979
• Docket Number: No. 78-11-A,78-11-A
• Citation: 121 R.I. 480,400 A.2d 263
• Parties: James F. DUFFY v. Rocco MOLLO et al. ppeal.
• Court: Rhode Island Supreme Court

Page 263

400 A.2d 263

121 R.I. 480

James F. DUFFY v. Rocco MOLLO et al.

No. 78-11-Appeal.

Supreme Court of Rhode Island.

April 13, 1979.

[121 R.I. 491] Leary & Holland, Raymond C. Holland, Tiverton, for plaintiff.

Dolbashian, Chappell & Chace, Paul M. Chappell, Portsmouth, for defendants.

OPINION

WEISBERGER, Justice.

This is an action for a declaratory judgment that certain restrictive covenants concerning the use of real estate owned by the plaintiff James F. Duffy (Duffy) be declared null and void and removed as a cloud on title. In the complaint Duffy also sought injunctive relief against adjacent landowners Rocco and Helena Mollo (the Mollos) to prevent any attempt by them to enforce such restrictions against him. A Superior Court judgment entered on October 28, 1977, declared Duffy to be the owner of the real estate free and clear of all restrictions concerning residential use and permanently enjoined the Mollos from interfering with Duffy's use and development of his land consistent with the present applicable zoning classification. The case is before us on the Mollos' appeal from the Superior Court judgment pursuant to G.L. 1956 (1969 Reenactment) § 9-30-7 and § 9-24-1, as amended by P.L.1975, ch. 244, § 1.

The real estate in question is located at 587 Main Road, Tiverton, and is designated as lot 100 on the Manchester Estates Plat in the town of Tiverton. The Mollos are owners of real estate which is adjacent to the western boundary of lot 100 and designated as lot 101 on the Manchester Estates Plat. Lots 100 and 101 were originally part of a 30-acre parcel located to the west of Main Road. The parcel was conveyed by Avis M. Berhman to Ridgeview of Tiverton, Inc. (Ridgeview), a local land development company, by warranty deed dated November 20, 1951. The deed set forth six restrictive covenants concerning the frontage, area, use and building requirements on the lots into which Ridgeview intended to subdivide the parcel. We are concerned with only one restriction on this appeal:

"3. No building shall be erected on any of said lots excepting a one family house and a garage for the use of the occupants thereof."

Ridgeview subdivided the parcel into a number of lots subject to the foregoing restriction in accordance with its covenant with Avis Berhman. Ridgeview then proceeded to convey eight of the lots, including one which was acquired by the Mollos by deed dated January 30, 1953. All of the deeds to the various purchasers of lots in the development have contained the same restriction.

The purchaser of the ninth lot was James Duffy, who acquired lot 100 from Ridgeview by warranty deed dated September 4, 1953. As part of the transaction, Duffy obtained a lifting of the restriction against commercial use from Avis Berhman, who reconveyed lot 100 to Ridgeview free and clear of all restrictions. At the same time Duffy acquired from Ridgeview a parcel of land adjacent to the north of lot 100 which was not part of the Manchester Estates Plat and carried no restrictions concerning use.

Duffy constructed a drugstore on lot 100 which opened for business as "Duffy's Drugstore" in January 1954. On the northern parcel he later constructed a larger building which was used as an A & P store. The trial justice found that when the drugstore was constructed, no objection was raised by the surrounding landowners who might have asserted the protection of the restrictions in the deeds. The Mollos' right to enforce the covenant at that time was not an issue at trial and is not raised on this appeal. In 1962 Duffy built an addition to the drugstore which doubled its size and extended the structure across the dividing line between lot 100 and his parcel to the north.

Duffy operated the drugstore from 1954 to 1976 when the continued growth of the pharmacy business required moving it out of the original building into the larger building to the north, which by that time was no longer being used as an A & P store. The original drugstore building was left vacant and remains vacant to the present time.

Duffy thereafter entered into negotiations with Industrial National Bank of Rhode Island for a long-term lease of the vacant building on lot 100. When apprised of the recorded restrictions, however, the representatives of the bank decided that in light of the costly improvements they intended to make to the building on lot 100, they would not enter into the lease until the restrictions were removed.

The bank's refusal to enter into the lease prompted Duffy to bring the present action in the Superior Court on June 6, 1977, seeking to lift the restrictions as a cloud on title. The action was brought against the Mollos and other defendants not parties to this appeal against whom default judgments were ultimately entered.

The trial justice found that the restrictions against commercial use were no longer valid because the character of the land on either side of Main Road in the area of lot 100 had radically changed since the date of the original plat and subdivision. He further found that Duffy's lot was virtually useless and valueless for residential purposes, and that the restriction limiting the use of lot 100 to single-family, owner-occupied residences was no longer enforceable because it constituted a cloud on title which Duffy was entitled to have removed.

We address first the Mollos' contention that the trial justice erred in finding as a fact that the character of the land in the area of lot 100 had radically changed from largely residential to commercial. In so doing, we are mindful that this court will not disturb the findings of fact of a Superior Court justice sitting without a jury unless it is shown that he was clearly wrong or that he misconceived or overlooked material evidence on a controlling issue. LaPorte v. Ramac Associates, Inc., R.I., 395 A.2d 719 (1978); Turner v. Domestic Investment & Loan Corp., R.I., 375 A.2d 956 (1977).

The Mollos contend in substance that the trial justice misconceived the evidence concerning the lack of commercial development of the west side of Main Road and the volume of traffic flowing along Main Road past lot 100. They assert that the evidence indicates that lot 100 is the only property used for commercial purposes in the entire Manchester Estates Plat. They also assert that the west side of Main Road where lot 100 is located is still largely residential as opposed to the more heavily commercialized east side, and that the volume of traffic is presently less than it was before Route 24 was constructed in 1960. In addition they contend that certain photographic exhibits "clearly" indicate the residential character of the neighborhood in question.

We note at the outset that the cases cited by the Mollos are of no assistance to them concerning the change in the neighborhood because they are factually distinguishable from the instant case. Determinations of whether a change in the character of a neighborhood has occurred are made on the basis of a unique set of facts. Aside from certain general guiding principles, " '(n)o hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions * * *.' " Ault v. Shipley, 189 Va. 69, 76, 52 S.E.2d 56, 59 (1949).

Mr. Paul Giroux, a real estate expert, gave the following uncontradicted testimony on behalf of Duffy at trial. At the time Duffy purchased the real estate in 1953 the area was farmland, but since that time Main Road, now Route 138, has developed into a strip commercial frontage. Today approximately 60% Of the frontage is devoted to business use. There are numerous cross streets between Fall River and lot 100 which head east and west into residential developments. Main Road serves as a collector street for the residential developments and is therefore a natural location for services, goods and retail sales. The area has now been zoned "general commercial" by the town of Tiverton. In the vicinity of lot 100 are a bank, a gasoline station, a large building materials center, a supermarket, two drugstores and a small restaurant. Although the volume of traffic has diminished since Route 24 was constructed in 1960, the volume is still very substantial and inappropriate to a location devoted to residential purposes. Further, the expert asserted that the Duffy property has absolutely no value as a single-family dwelling site as a result of the commercial nature of the strip and the heavy traffic flow.

We are not prepared to say, on the basis of our view of the evidence, that the trial justice misconceived the evidence as to the changed character of the neighborhood. In fact, the evidence squarely supports the conclusion that the change in the character of the neighborhood along either side of Main Road has been so radical and permanent as to render perpetuation of the restriction against commercial use plainly unjust because its original purpose can no longer be accomplished. Hill v. Ogrodnik, 83 R.I. 138, 113 A.2d 734 (1955).

We also conclude that the trial justice was not clearly wrong in his appraisal of the photographs of the area of lot 100, marked exhibits 10 through 13. There is no claim by the Mollos that the photographs do not properly represent the area as it now exists. Rather, they attempt to reargue the persuasive effect of the photographs, which is not a matter for this court, but for the trier of fact alone. East Montpelier Development Corp. v. Barre Trust Co., 127 Vt. 491, 253 A.2d 131 (1969).

The Mollos also contend that an injunction may not be sought under the Uniform Declaratory Judgments Act, §§ 9-30-1 to -16. In support of this contention they cite Gray v. Leeman, 94 R.I. 451, 182 A.2d 119 (1962). While this statement of the law may be correct, it is not applicable to the facts of the instant case in...