Grady v. Garland

• Decision Date: 23 February 1937
• Docket Number: No. 6555.,6555.
• Citation: 89 F.2d 817
• Parties: GRADY v. GARLAND et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

89 F.2d 817 (1937)

GRADY v. GARLAND et al.

No. 6555.

United States Court of Appeals for the District of Columbia.

Argued January 5, 1937.

Decided February 23, 1937.

Elisha Hanson and Eliot C. Lovett, both of Washington, D. C., for appellant.

R. Carmack Waterhouse, Randolph M. Garland, and Harold P. Ganss, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellant, plaintiff below, filed a bill of complaint in the Supreme Court of the District of Columbia (now the United States District Court for this District), seeking the removal of a cloud upon his title to lot 99 in square 3105 in the District of Columbia, the cloud being in the form of a restrictive covenant.

It appears that, during the years from 1901 to 1905, the real estate firm of Middaugh & Shannon erected a group of eight houses in square 3105, which square is bounded on the north by S street N. W. and on the west by First street N. W. Six of these houses, immediately adjoining each other, face west on First street, the house at the north end of the row being at the northwest corner of the block. The other two houses, which also adjoin each other, are immediately around the corner on S street, facing north. The six houses on First street are erected on lots 97 to 102, inclusive. The two houses on S street are erected on lots 103 and 104, which extend south adjacent to the rear of lots 97 to 102, inclusive, lot 103 lying immediately behind the First street lots and lot 104, adjoining lot 103, extending south along and adjacent to an alley which runs south from S street through the block.

These eight lots were conveyed to individual grantees, the deed in each instance containing the following covenant: "Subject also to the covenant that said lot shall never be rented, leased, sold, transferred or conveyed unto any negro or colored person under a penalty of two thousand dollars ($2,000), which shall be a lien against said lot."

Plaintiff Grady, as the owner of lot 99, brought this suit on behalf of himself and on behalf of the owners and parties interested in lots 97, 98, 100, 101, and 102. The relief prayed for in the bill is not only that the cloud be removed from the titles to lots 97 to 102, inclusive, but also that "the restrictive covenants of record in the deeds to Lots 103 and 104 in Square 3105 be decreed to be clouds upon the titles of the owners thereof, impeding the free use and enjoyment of their properties, and that the same in their entirety be cancelled, removed, and held for naught."

The defendants, owners of lots 103 and 104, answered and moved the court for a dismissal of the bill. From a decree granting the motion to dismiss, this appeal is taken.

While it is true that the averments of the bill are admitted by the motion to dismiss, we think the bill wholly fails to allege facts sufficient to justify the granting of the relief sought. The bill merely alleges, in effect, that by reason of the occupancy by colored persons of the territory immediately west of the property in question, plaintiffs' property has been damaged and that it could not result in damage to the defendants to have the restriction removed. These are merely conclusions, not supported by any facts alleged in the bill, since there are no averments to the effect that the property has been rendered less valuable for rental purposes or for sale, or that the character of the environment would make it unfit or unprofitable for use by the enforcement of the restriction, or that a material change has occurred in the environment since plaintiffs acquired title to their respective properties — all of which are facts important to be considered in an action for the removal of the restriction.

It appears that the properties fronting for one block north and for several blocks south on First street, as well as the properties lying for many blocks west of First street, are occupied by colored residents. This is true with few exceptions. On the other hand, it was conceded at bar that the properties on S street east of First street, as well as the properties fronting on North Capitol street, the next street east of First street, for one block south of S street, and for many blocks north thereof, as well as the properties lying to the east of North Capitol street, are occupied exclusively by white residents.

The properties of the defendants, lots 103 and 104, extend along the rear of lots 97 to 102, inclusive, for the entire combined width of the last-mentioned lots. Defendants insist that the value of their properties for the purposes which induced their purchase, i. e., their personal use and enjoyment, would be seriously impaired as a result of the occupancy of plaintiffs' properties by colored residents. And we cannot say that their contention is unreasonable. This is not a case where the restricted properties are rendered useless for the purpose for which restricted because of the invasion of business, but a case...