Gorman v. Boehning, 5346

• Decision Date: 26 April 1951
• Docket Number: No. 5346,5346
• Citation: 26 A.L.R.2d 868,1951 NMSC 33,55 N.M. 306,232 P.2d 701
• Parties: , 26 A.L.R.2d 868 GORMAN et al. v. BOEHNING et al.
• Court: New Mexico Supreme Court

Page 701

232 P.2d 701

55 N.M. 306, 26 A.L.R.2d 868

GORMAN et al. v. BOEHNING et al.

No. 5346.

Supreme Court of New Mexico.

April 26, 1951.

Rehearing Denied July 2, 1951.

K. Gill Shaffer, Albuquerque, for Boehnings.

Moses & Vaught, Albuquerque, for Mays.

Owen J. Mowrey, Albuquerque, for appellees.

COMPTON, Justice.

This is a class action by appellee, Lee Gorman, for herself and others similarly situated, for a declaratory judgment determining whether building restrictions are in effect in the Montevista Addition, a subdivision to the City of Albuquerque, and if so to enforce the same by injunction.

The complaint alleges that the Boehnings are the owners of lot 1 and that the Mays are the owners of a portion of lot 2, block 36, of said addition and that they are now using the same for business purposes in violation of restrictive covenants. They charge similar violations by other owners but the appeal does not involve them. The answers deny any general plan of restriction, restricting the use of the lots to residential purposes. Further answering, appellants claim that if there had been such plan the same was destroyed by reason of foreclosure of paving liens against the lots by the City of Albuquerque. Appellants also defend on the grounds of estoppel by laches and changed conditions in the area whereby it is claimed that restrictions are no longer of value. The court found that restrictions were in effect and, from a judgment for appellees, appellants appeal.

There is but little dispute in the evidence. The addition is bounded on the North by Las Lomas Road, on the South by Central Avenue, on the East by Carlisle Avenue and on the West by Girard Avenue. It is traversed from the Southwest to the Northeast by Montevista Boulevard and from the Northwest to the Southeast by Campus Boulevard. There are some 40 blocks, comprising 707 lots. The subdividers originally designated blocks 4, 5, 6 and 7, facing Central Avenue, and block 38, at the intersection of Las Lomas Road and Carlisle Avenue, as business lots. All other lots and blocks were designated as residential lots. Blocks 8 and 11, facing Central Avenue, and a portion of blocks 12 and 13, on Girard Avenue and Montevista Boulevard, were later designated as business lots. Subsequently, block 39, a rectangular block on Montevista Boulevard and Las Lomas Road, was designated as business lots. In 1942, at the suggestion of the Federal Housing Administration which was financing the construction of residences in the area, a replatting of block 40 was made reclassifying that portion of said block, facing block 39, as business lots.

The Montevista Company conveyed blocks 17 and 23 to the trustees of the Central Christian Church for church purposes, but without other restrictions. The company was dissolved in August, 1944, and lots remaining unsold, approximately 65 in number, were then deeded to the directors of the corporation without restrictions.

It becomes apparent that there was a plan restricting a portion of the area for business property and the remainder for private dwellings. The court found, Finding No. 6, and the parties so stipulated, that the Montevista Company, from its inception, placed restrictions in all deeds covering residential property, except those mentioned in the last preceding paragraph, as follows: 'The premises hereby conveyed are located in what is known as the residence area of said addition, and it is expressly covenanted and understood that the grantee-, _____ heirs, successors or assigns, shall never erect more than one dwelling house on any one lot, nor shall such dwelling house be nearer than twenty feet from the front property line, nor shall such dwelling house be one that costs less than Three Thousand Dollars ($3,000) (this amount varied as to location) to build, and the grantee-, for _____ heirs, successors and assigns, covenant that _____ will not * * * permit the erection or maintenance of any business house * * * thereon, * * *.' (Emphasis ours.)

This language, standing alone, in our opinion manifests a general plan of restrictions and restricts the use of the lots in question to residential purposes. Hoover v. Waggoman, 52 N.M. 371, 199 P.2d 991, 996. The covenant construed in Meyer v. Stein, 284 Ky. 497, 145 S.W.2d 105, cited in the Hoover case, recites that the property conveyed 'shall be used only for the erection of a single residence and no residence shall be erected thereon that shall cost less than $5000.' The court said: 'No one can read the restrictive covenants in the deeds conveying this property and escape the conclusion that it was the intention of the parties to, and they did, limit the use of the property to residential purposes. If we should accept appellant's argument that such covenants related only to the building of the homes, and placed no limitation upon their use after they were once constructed in conformity with the restrictions, then building restrictions would render the owners of property no benefit and parties incorporating such restrictive covenants in their deeds would be doing a vain thing.'

Originally, all deeds from the Montevista Company carried a reversionary clause for violation of restrictions. On August 4, 1938, the company filed a waiver of the clause, in which it said: '* * * Provided, however, that Montevista Company (N.S.L.) for itself and for the benefit of successor vendees and assigns, does not waive not relinquish the right to have each and all of said building restrictions and covenants kept and enforced and does not waive the right to enforce the same, either by itself or its vendees through injunction or any other appropriate legal proceedings, the intention of this instrument being that th Montevista Company (N.S.L.) does hereby desire to terminate its right to claim a reversion and revesting in it of the title to any tract of land in said addition.' (Emphasis ours.)

Thus, it again appears that it was the...