Edgewater Beach Hotel Corp. v. Bishop

• Decision Date: 26 August 1935
• Citation: 120 Fla. 623,163 So. 214
• Parties: EDGEWATER BEACH HOTEL CORPORATION et al. v. BISHOP et ux.
• Court: Florida Supreme Court

163 So. 214

120 Fla. 623

EDGEWATER BEACH HOTEL CORPORATION et al. v. BISHOP et ux.

Florida Supreme Court

August 26, 1935

Rehearing Denied Sept. 17, 1935.

Suit for an injunction by William H. Bishop and wife against the Edgewater Beach Hotel Corporation and another. From a decree awarding the writ, defendants appeal.

Reversed and cause dismissed without prejudice to complainants. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Stapp Gourley, Ward & Ward, of Miami, for appellants.

S. J Barco, of Miami, and John L. Graham, of De Land, for appellee.

OPINION

BUFORD Justice.

This case is before us on appeal from decree of injunction which was sought to enforce the provisions of a restrictive covenant running with the land and on application for supersedeas of the decree of injunction.

Inasmuch as the granting of a supersedeas would in effect vacate the order of injunction, the court issued its order directing that the case be heard on application for supersedeas and on its merits at one and the same time. In short, the facts are:

Ocean Beach Realty Company in 1914 began development of a strip of land in the southern part of Miami Beach peninsula running along the Atlantic Ocean. The subdivision was called Ocean Beach addition to Miami Beach and one of those additions was specifically platted and called Ocean Beach addition No. 2 and consisted of six blocks numbered from 14 to 19, both inclusive. These blocks were laid out immediately west of a driveway which was then only twenty-five feet wide called Ocean drive and the east front of the blocks faced the Atlantic Ocean. In these six blocks there were platted forty-nine lots facing the Atlantic Ocean and a like number of lots facing a street on the west known as Collins avenue or Atlantic boulevard which was a sixty-foot street.

We shall deal only with those lots in the six blocks facing Ocean drive. It appears that there was no general agreement or covenant applying to all of the lots in that subdivision restricting the distance from the east property line at which houses should be erected, but some of the deeds conveying lots in this subdivision contained a restrictive covenant in the following language:

'ist. That the grantee herein, his heirs and assigns, shall not erect nor permit to be erected any building on the said above described property, whose front line shall be less than twenty-five (25) feet from the front of said lot.'

Of the forty-nine lots facing Ocean drive, there were seven conveyed by deeds which did not contain this restrictive covenant and some of those were conveyed to the officers of the corporation which put on the development of the subdivision.

The record shows that as to twelve other of the forty-nine lots (the deeds conveying the same from the developers to purchasers containing the restrictive covenants) the restrictions have not been adhered to but have been violated. At the time the record was made up of the forty-nine lots there were twenty still vacant. In block 19 there were ten lots facing Ocean drive numbered from 1 to 10, inclusive. The complainant in the court below owned lot No. 7 and this lot was conveyed by deed containing the restrictive covenant. Lot No. 3 was conveyed by deed containing restrictive covenant and it has been respected. Lots 9 and 10 were conveyed without the restrictive covenant. The defendant in the court below, appellant here, became the owner by mesne conveyance of lot 8 and lot 9. The deed by which lot 8 was originally conveyed contained the restrictive covenant. The deed conveying lot 9 did not.

The owner of lot No. 7 built an apartment house on that lot with the front of the main house thirty-five feet back from the property line and the front of a tenfoot porch back twenty-five feet from the property lien. The appellants here procured from the original vendors a release of the restrictive covenant as to lot No. 8 and began erection of a large hotel on lots 8 and 9, the restrictive covenant apparently applying to lot No. 8 and not applying to lot No. 9. The owner of lot No. 7 exhibited his bill of complaint praying for an injunction against the violation of the restrictive covenant as to lot No. 8.

From the foregoing, it will be seen that there was a great lack of uniformity with reference to the insertion of the restrictive covenant clause in the conveyances of the lots in this subdivision. Lots 9 and 10 of block 19 which were conveyed without the restriction were at the south end of that block. Lots 4 and 5 in block 17 which were conveyed without restrictions were in the middle of that block. Lots 1 and 2 in block 15 which were conveyed without restriction were in the north end of that block and lot 4 in block 14 which was conveyed without restriction was near the middle of that block.

The record shows that when this subdivision was platted there was practically no development in that vicinity at Miami Beach. One of the restrictions contained in the deeds was, 'That the said grantee, his heirs and assigns, shall not erect nor permit to be erected, any building on any lot fronting Ocean Drive at a cost...