Eisenstadt v. Barron

• Court: Maryland Supreme Court
• Writing for the Court: Before HAMMOND; SMITH
• Citation: Eisenstadt v. Barron, 252 Md. 358, 250 A.2d 85 (Md. 1969)
• Decision Date: 10 February 1969
• Docket Number: Nos. 28,223,s. 28
• Parties: Naum P. EISENSTADT, Trustee for Edgewood Hill Associates v. Elbert W. BARRON et al.

Page 358

252 Md. 358

250 A.2d 85

Naum P. EISENSTADT, Trustee for Edgewood Hill Associates v. Elbert W. BARRON et al.

Nos. 28, 223.

Court of Appeals of Maryland.

Feb. 10, 1969.

R. Noel Spence, Hagerstown (Kaylor, Spence & Hovermale, Hagerstown, on the brief), for appellant.

William J. Dwyer, Hagerstown, for appellees.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SMITH, Judge.

Appellant (Eisenstadt) acquired land from one of the appellees (Barron) near Hagerstown. The deed recited that the land was 'conveyed subject to the conditions, restrictions, reservations, easements, rights-of-way, and streets as shown on the aforesaid Plat, and subject also to the further condition that the lot conveyed herein shall have not more than one water connection to the water main in the bed of Redwood Circle, and that said water connection shall not be greater than one inch in diameter, and that said connecting water line shall be used solely for supplying water for the domestic use for the dwelling now thereon or to be constructed thereon.'

The plat to which reference was made was of record among the land records of Washington County. It had typed thereon the following legend:

'RESTRICTIONS AND CONDITIONS-

'The following conditions and restrictions shall apply to and bind each lot shown hereon.

'1-The lots shown on this plat shall be used for residential purposes only, and no structure shall be erected * * * thereon except a single dwelling. * * *

'5-No sheds * * * or other buildings, other than a private garage, shall be erected or maintained on any lot shown on this plat.

'8-Enforcement shall be by proceedings at law or in equity against any persons or person violating or attempting to violate any of the aforegoing conditions and restrictions either to restrain violation, or to recover damages.'

The deed to Barron in addition to the restrictions mentioned above in the deed from Barron to Eisenstadt contained the following language:

'Whereas, the Estate of George H. Day on behalf of itself as well as the successors in title to the aforesaid lands, or portion thereof, desire the protection and assurance that there will be sufficient water pressure and water supply to the lots herein conveyed as well as to those lots which may later be developed; and

'Whereas, the parties hereto covenant and agree, for themselves, their heirs, assigns, and successors in title that each of the lots conveyed shall not have more than one water connection to said water main in the bed of Redwood Circle, and that said water connections shall not be greater than one inch in diameter and that said connecting water line shall be used solely for supplying water for the domestic use for the dwelling now thereon or to be constructed thereon * * *.'

The deed to Barron was dated June 6, 1966. The deed to Eisenstadt was dated July 20, 1967.

Eisenstadt proceeded to construct an access driveway through his lot to his apartment development located beyond the confines of the platted area. He also installed an eight inch water line from Redwood Circle to his apartment development across his lot.

Barron and the other appellees brought suit to enjoin use of the lot for other than residential purposes and to enjoin construction of the water line. Although the suit was brought before the water line was installed, the water line was completed before trial.

The chancellor said:

'The defendant has been quite set in his determination to violate the restrictions both before and after he accepted the deed. He obviously never intended to abide by the restrictions. In this regard he was practicing a deceit against the grantors. A Court of equity will not lend its aid to this deceit.'

Accordingly, he enjoined use of the land as a driveway or roadway and enjoined the running of an eight inch water line to the lot in violation of the restrictive covenant. Thereafter, Eisenstadt was held in contempt for violating the injunction.

I.

Eisenstadt contends the action of the trial court in enjoining him from using his property as an access driveway to other property owned by him is contrary to public policy and such use should not be precluded by restrictions of record. The only case he cites in support of this position is Barbieri v. Ongaro, 208 Cal.App.2d 753, 25 Cal.Rptr. 471. This is no doubt based on a supplemental note to 25 A.L.R.2d 904, the A.L.R. Later Case Service at page 821 having said with reference to this particular case:

'The construction of a roadway was not violative of a restriction where it did not affect the residential use of the property.'

The court in that case said, however:

'The trial Judge viewed the premises, and is in a better position than we to determined the effect of the roadway upon the residential use of plaintiffs' premises and the other lands designed to be benefited by the restrictions. We accept the conclusion of the trial court that the proposed roadway for access to properties outside those subject to the present restrictions was not a residential use within the meaning of the three party agreement.' 208 Cal.App.2d at 758, 25 Cal.Rptr. at 474.

We have found no case in Maryland precisely on the subject. Smith v. Government Realty, 172 Md. 547, 192 A. 341 (1937) is cited by some authorities as holding that a right-of-way may be created where the property is restricted to residential use. It did not so hold. The argument in that case appears to have been over a proposal to divide two lots of 50 feet in width into lots of a width of 25 feet so that there would be four lots 25 feet wide, with a dwelling to be erected on each and to open a private alleyway 15 feet in width across the lots. Judge Parke there said for this Court:

'1. The two restrictions on which the plaintiffs rely are these:

"2nd. That no portion of the dwelling house shall be nearer to the side lines of the lot than five feet. * * *

"4th. That one dwelling only shall be erected on each lot twenty-five feet wide, or two on a lot fifty feet wide.'

'2. The attention of the court has not been directed to any restriction which would in terms prevent the laying of the contemplated private alley or way over any portion of the defendant's lots. Neither is such a way a use of the lot which is inferentially denied by any restrictive provision. Nor would it mark a subdivision of the two lots over which it is to pass for the purpose of the evasion of any restriction imposed. The record does not disclose a sufficient ground for equitable interference * * *.' Id. at 550-551, 192 A. at 342.

A careful examination of the record in Smith shows there was no restriction requiring property to be used for residential purposes only. ¹

In an annotation in 25 A.L.R.2d 904 (1952) entitled 'Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant' at 911 it is stated:

'It has generally been held that the maintenance, use, or grant of a right of way across property whose use is restricted to residential purposes violates a covenant imposing such restriction where the right of way is to be used as an incident to a use other than for residential purposes.

'The reasoning underlying such holding is that while covenants restricting the use of property to residential purposes necessarily permit any use of such property reasonably consistent with its use for residential purposes, they plainly imply that the restricted property is not to be put into service as an incident to a forbidden business or commercial enterprise, even though such business or enterprise is situated on adjacent unrestricted land.'

Although we find no cases precisely in point elsewhere, there are four which are relevant, namely Braes Manor Civic Club v. Mitchell, 368 S.W.2d 860 (Tex.Civ.App. 1963); Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619 (1954); Thompson v. Squibb, 183 So.2d 30 (Fla.Dist.Ct. of App. 1966); and Donald E. Baltz, Inc. v. R. V. Chandler & Co., Inc., 248 S.C. 484, 151 S.E.2d 441 (1966).

In Braes, supra, the defendant was the owner of lots 4, 5, 6 and 7 in a subdivision while the plaintiff owned lot 8. The restrictions on the various lots were as follows:

'Each lot in said Braes Manor, Section Two, shall be used for residential purposes only, upon which family dwellings may be erected as follows:

'a) a single family dwelling of one, one and one-half or two stories may be erected on any lot in said Section Two * * *.

'b) a duplex apartment or multiple units dwelling building may be erected on Lots * * * 4, 5, and 6 * * *.'

Defendants erected apartment buildings on lots 4, 5 and 6 and paved lot 7. Plaintiff sought to enjoin the use of lot 7 as a parking lot. In granting the injunction the court stated:

'It is our view that defendants violated the restrictions applicable to lot 7. Lot 7 is restricted to residential use, and to erection of a one, one and one-half, or two story family dwelling thereon. Use as a parking lot of lot 7, for tenants of lots 4, 5 and 6 is not such residential use as prescribed and required by the restrictions. A parking lot is not a residence, and use as a parking lot for the residents of lots 4, 5 and 6 does not, in our view, constitute 'residential use' as prescribed by the restrictions.' Id. at 861.

In Callaham, supra, land was restricted to residential use. The owner of certain of the lots proposed resubdividing within the limits imposed as to lot sizes and set back distances and in so doing to use part of certain lots for streets within the subdivision. On those facts, it was held that there was no violation, that the plans conformed to the original restrictive covenant.

In Thompson, supra, the court said:

'The critical question may be stated as:

'Is a covenant running with the land that all land included in a named platted subdivision 'shall be used for residential purposes only' violated by an owner voluntarily constructing a street right of way across part of a lot of the subdivision to...