Duvall v. Ford Leasing Development Corp., 771300

• Decision Date: 08 June 1979
• Docket Number: No. 771300,771300
• Citation: 255 S.E.2d 470,220 Va. 36
• Parties: William H. DUVALL et al. v. FORD LEASING DEVELOPMENT CORPORATION. Record
• Court: Virginia Supreme Court

Page 470

255 S.E.2d 470

220 Va. 36

William H. DUVALL et al. v. FORD LEASING DEVELOPMENT CORPORATION.

Record No. 771300.

Supreme Court of Virginia.

June 8, 1979.

Henry C. Mackall, Fairfax (Douglass S. Mackall, III, Glenn H. Silver, Fairfax, on briefs), for appellants.

W. Curtis Sewell, Alexandria (Richard F. Williamson, Thomas & Sewell, P. C., Alexandria, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

This case involves questions concerning both implied and express restrictive covenants and their applicability to prevent commercial use of all or part of a parcel of land derived from a larger tract, the balance of which is restricted and developed exclusively for residential purposes.

The questions arose from the filing by the complainants, William H. Duvall and his wife, Mildred, and others, ¹ owners of lots in the Belle Haven community of Fairfax County, of a bill of complaint for injunctive relief against the defendant, Ford Leasing Development Corporation. The bill alleged that the lots owned by the complainants and a parcel owned by the defendant all were subject to restrictions limiting use of the property to residential purposes. The bill alleged further that the defendant, in violation of the restrictions, proposed to construct upon its land an automotive sales and service center.

Answering the bill, the defendant admitted that it proposed to use its land as indicated, but it denied that any restriction prohibited the use. Upon the issue thus joined, the chancellor heard the matter, found the defendant's land "not to be subject to the restrictive covenants," and dismissed the complainants' bill.

The record shows that the lots owned by the complainants and the parcel owned by the defendant are parts of a tract originally containing 222 acres located in the eastern portion of Fairfax County, just south of the City of Alexandria. In 1925, Belle Haven Realty Corporation acquired the 222-acre tract and began to subdivide it and develop Belle Haven, which has become a desirable and exclusive residential community.

The realty corporation developed the land in stages. Between 1925 and 1952, the corporation recorded a number of deeds of dedication and plats, subdividing different portions of the tract into several numbered sections of Belle Haven. Each deed of dedication placed certain express restrictions upon the land therein subdivided. Pertinent here, the restrictions forbade commercial use of the land. By 1952, the realty corporation had conveyed, subject to restrictions, more than 200 lots to various purchasers.

In August, 1952, as part of its corporate dissolution, the realty corporation conveyed to Helen Olmi the remaining portion of the Belle Haven tract, comprising 74.4685 acres, including some land subdivided and restricted by the realty corporation. The deed provided that an unsubdivided 6.8185-acre parcel, described by metes and bounds and bordering U.S. Highway No. 1, should be "free of any and all restrictions." The deed provided further, however, that the 67.65 acre "balance of the property herein conveyed is sold subject to . . . conditions and restrictions which shall operate as covenants running with the title to the land." The listed restrictions were similar to those contained in the various Belle Haven dedications; included were these two pertinent restrictions:

"1. That all houses upon the premises hereby conveyed shall be built and used for residence purposes exclusively, except that garages may be built for use in connection with said residence.

"2. That no trade, business, manufacture or nuisance of any kind or character shall be maintained or permitted upon said premises."

Between 1952 and 1954, Helen Olmi subdivided parts of the 67.65-acre parcel into several new sections of Belle Haven, subjecting the lots so formed to restrictions similar to those contained in her deed of acquisition. In the same period, Mrs. Olmi conveyed from the 67.65-acre parcel a number of lots subject to restrictions. Included were conveyances of lots to purchasers who were the predecessors in title to present complainants Roche, Rowan, and Gregory. ²

On October 20, 1954, Belle Haven Realty Corporation, grantor in the 1952 deed to Helen Olmi, executed a "Deed of Correction and Vacation." This instrument recited that the 1952 deed erroneously had failed to exempt from the restrictions therein imposed all the land the parties had intended to exempt. Accordingly, the "correction" deed conveyed to Helen Olmi "free of any and all restrictions" both the 6.8185-acre parcel exempted in the 1952 deed and an additional, adjoining tract described by metes and bounds as containing 5.5134 acres, making a total of 12.3319 acres purportedly exempted from restrictions. The 1954 "correction" deed did not include as parties, however, the owners of those lots that therefore had been conveyed by Helen Olmi from the restricted 67.65-acre parcel.

By deed dated June 30, 1972, Helen Olmi conveyed to the defendant the tract of land upon which the disputed automotive sales and service center is proposed to be built. This tract is composed of the two unsubdivided parcels purportedly exempted from restrictions by the 1952 and 1954 deeds to Helen Olmi, less a portion acquired for highway improvement. The defendant's deed was made subject only to "easements of record." In the hearing below, however, a preliminary report of title that had been received by the defendant was admitted into evidence to show that the defendant "was given notice of the restrictive covenants."

This brings us to the complainants' first contention, Viz., that the trial court erred in refusing to hold that the defendant's entire tract was subject to an implied covenant restricting its use to residential purposes. Such a covenant, sometimes referred to as an "implied reciprocal negative easement" or an "equitable servitude," arises, the complainants say, when a common grantor develops land for sale in lots and pursues a course of conduct which indicates an intention to follow a general scheme of development for the benefit of himself and his purchasers and, in numerous conveyances of the lots, imposes substantially uniform restrictions, conditions, and covenants relating to use of the property. The right thus arising, the complainants assert, permits a grantee to enforce similar restrictions against the part of the tract retained by the grantor or against any lot subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions.

Their evidence, the complainants argue, established conclusively an intention by the developer of Belle Haven to adopt a general scheme and plan for development of the entire tract, including the defendant's property, as an exclusively residential subdivision. Therefore, the complainants maintain, under this court's decisions in Cheatham v. Taylor, 148 Va. 26, 138 S.E. 545 (1927), Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673 (1963), and Mid-State Equipment Co. v. Bell, 217 Va. 133, 225 S.E.2d 877 (1976), the trial court was bound to "impose and enforce an implied restrictive covenant (against commercial use) upon all of the land" of the defendant.

It is true that, in the cases cited, we recognized and applied the doctrine of implied reciprocal negative easements, with the result in each instance that injunctive relief was awarded to prohibit a use that would have been contrary to a restriction found to exist as part of a general scheme of development. But none of the cited cases involved the sort of piecemeal development that is reflected in the present record.

As has been noted, Belle Haven was developed in stages, the various sections having been created from time to time over a period of many years by the recordation of a number of deeds of dedication and plats. ³ We believe that each of these recordings created a separate and distinct subdivision, with its own set of restrictions benefiting and burdening only the land in that particular subdivision. While the restrictions imposed in each dedication were similar to those applicable to other sections of the development, the course of conduct pursued by the developer did not indicate an intention to establish, as among the owners of lots in the different sections, reciprocal benefits and obligations entitling the owner of property in one section to enforce a restriction against the owner of property in another section. See Meagher v. Appalachian Power Co., 195 Va. 138, 149, 77 S.E.2d 461, 467 (1953).

Neither does the single 1952 deed from Belle Haven Realty Corporation to Helen Olmi evidence a course of conduct, indicating an intention to follow a general scheme of development of the...