Grady v. Schmitz

• Decision Date: 20 September 1988
• Docket Number: No. 5716,5716
• Citation: 547 A.2d 563,16 Conn.App. 292
• Parties: John H. GRADY et al. v. Robert A. SCHMITZ et al.
• Court: Connecticut Court of Appeals

Page 563

547 A.2d 563

16 Conn.App. 292

John H. GRADY et al. v. Robert A. SCHMITZ et al.

No. 5716.

Appellate Court of Connecticut.

Argued May 12, 1988.

Decided Sept. 20, 1988.

Philip R. McKnight, Greenwich, for appellants (plaintiff Clifford C. Woods, Jr., et al.).

Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, Darien, for appellees (named defendant et al.).

Before BORDEN, DALY and NORCOTT, JJ.

BORDEN, Judge.

The plaintiffs ¹ appeal from the judgment rendered in favor of the defendants ² on the plaintiffs' complaint seeking an injunction to enforce a restrictive covenant. The plaintiffs claim that the trial court erred in concluding that the covenant in question was not created to benefit the plaintiffs' land, and that its original purpose could no longer be accomplished. We find error.

Certain facts are not in dispute. The plaintiffs own property known as 21 Grove Lane, in Greenwich. Their property is across from the defendants' property, which is bordered by Grove Lane but is known as 111 Brookside Drive because it fronts on Brookside Drive. Both parcels are part of a tract of land formerly owned by Seaman Mead, which was bounded by Brookside Drive, Glenville Road, Dearfield Drive and Grove Lane. Before 1900, Mead transferred part of his tract to R. Jay Walsh, who was the common grantor of the plaintiffs and the defendants.

In 1903, Walsh conveyed what ultimately became the defendants' property to Norman T. Reynolds. That deed contained a provision that stated, inter alia, that the "grantee ... covenants and agrees for himself, his heirs, executors, administrators and assigns that he will not ... subdivide said premises for the purpose of erecting more than one house thereon. These covenants and agreements shall run with the land hereby conveyed and be binding upon said grantee, his heirs, executors, administrators and assigns." In 1976, the defendants acquired their property by virtue of a deed specifically referring to the restrictions contained in the deed from Walsh to Reynolds.

In 1904, Walsh conveyed what ultimately became the plaintiffs' property to Edward P. Williams. That deed contained a provision identical to the restriction in the deed from Walsh to Reynolds contained in the defendants' chain of title. In 1966, the plaintiffs acquired their property by virtue of a deed specifically referring to the restriction contained in the deed from Walsh to Williams.

This case arose because the defendants applied to the Greenwich planning and zoning commission for permission to subdivide their property into additional building lots. The plaintiffs sued the defendants, seeking an injunction barring the defendants from violating the restrictive covenant. The trial court, Hon. Margaret C. Driscoll, state trial referee, rendered judgment for the defendants. There were two bases for the court's decision. The first was that the purpose of a restrictive covenant burdening land adjacent to it is to benefit the grantor's homestead, and that the plaintiffs' property was located across the street from the homestead of Walsh, the original grantor. Thus, the court concluded that the covenant was not intended to benefit the plaintiffs' property. The second basis was that, whether or not the covenant was violated, there had been a change in the character of the area from single family homes to multi-family dwellings. This conclusion was based on the court's finding that the plaintiffs had rented part of their home and their carriage house to tenants, in violation of a different restrictive covenant in their deed limiting the use of their property to a "strictly private residence." The court also found that, because Walsh's homestead was now a building housing dental offices, and because the homestead property had been subdivided, Walsh's original purpose of protecting his homestead had been vitiated. This appeal followed.

The plaintiffs first claim that the court erred by concluding that the intent of the restrictive covenant was to benefit Walsh's homestead. They argue that the court misread the applicable case law in reaching this conclusion, and that, viewed properly, the covenant benefits their property and is enforceable by them. We agree.

Both parties agree, as do we, that the trial court's ultimate task was to determine the intent of Walsh as the grantor of the deeds containing the restrictive covenant at issue here. Although in most contexts the issue of intent is a factual question on which our scope of review is limited; see, e.g., Finley v. Aetna Life & Casualty Co., 5 Conn.App. 394, 408, 499 A.2d 64 (1985), rev'd on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Marion Road Assn. v. Harlow, 1 Conn.App. 329, 332, 472 A.2d 785 (1984).

In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee "presumptively or actually for the benefit and protection of his adjoining land which he retains." Stamford v. Vuono, 108 Conn. 359, 364, 143 A.2d 245 (1928). With respect to the third class of covenants, the original grantor, who is the owner of the property benefited, "and his assigns may enforce [the covenant] against subsequent purchasers of the property burdened. If the restrictive covenant is for the benefit of the remaining land of the grantor, it is an easement running with the land and may be enforced by a subsequent purchaser of the remaining land against the prior grantee and his successors in title...." Id. at 365, 143 A.2d 245.

The restriction in this case falls within this third class of covenants. It was exacted by Walsh from his grantee, namely, Reynolds, presumptively or actually for the benefit of the remaining, adjoining land retained by Walsh. As such, it is enforceable by the plaintiffs, who are the assigns of Walsh, the owner of the retained property benefited, against the defendants, who are the subsequent purchasers of the property burdened. We conclude, moreover, from the language in the deed from Walsh to Reynolds, and from the surrounding circumstances, that it was the intent of Walsh in exacting the covenant to benefit the adjoining land which he retained.

First, since Walsh extracted from Reynolds such a covenant, it must be viewed as "presumptively ... for the benefit and protection of his adjoining land which he retain[ed]." Id. at 364, 143 A.2d 245. Second, the language of the deed, namely, that the covenant "shall run with the land hereby conveyed, and be binding upon said grantee, as the heirs, executors, administrators and assigns," itself suggests a broad rather than limited scope. The fact that Walsh explicitly made the covenant run with Reynolds' land indicates that Walsh intended it to be enforceable by him as the owner of the land he retained, or by his assigns of that retained land. Cf. Bauby v. Krasow, 107 Conn. 109, 139 A. 508 (1927) (although the covenant did not explicitly run with the land, it was held by the court to do so because of the circumstances surrounding the grant). Third, the surrounding circumstances also indicate such an intent. The limitation to one house on the property is most appropriately viewed as indicating an intent to preserve the residential character and value of the land retained by Walsh. Certainly such a restriction inured to Walsh's benefit as the eventual seller of all his retained land, since it would affect the value of all that land, not just the portion comprising his homestead. Fourth, we find nothing in either the language or the circumstances of the deed to suggest a limitation on that intent to Walsh's homestead.

We agree with the plaintiffs that our case law does not support such a limitation. Although at least two of our cases have mentioned the grantor's homestead; see Bauby v. Krasow, supra at 115, 139 A. 508; Marion Road Assn. v. Harlow, supra, 1 Conn.App. at 335, 472 A.2d 785; the question of intent in both cases was determined pursuant to the broader principle that "a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is manifestly benefited by the restriction, it will be presumed that it was so intended." (Emphasis added.) Bauby v. Krasow, supra, 107 Conn. at 115, 139 A. 508; Marion Road Assn. v. Harlow, supra. The other principal cases are to the same effect. See, e.g., Harris v. Pease, 135 Conn. 535, 539, 66 A.2d 590 (1949) (covenant restricting erection of buildings was "in the nature of an easement inuring to the benefit of the land [the grantor] retained"); Stamford v. Vuono, supra (covenant extracted from grantee is "presumptively or actually for the benefit and protection of [grantor's] adjoining land which he retains"); Baker v. Lunde, 96 Conn. 530, 537, 114 A. 673 (1921) (restriction intended to "benefit another tract of the grantor adjoining the land on which the restriction is imposed," constitutes a perpetual easement attached to "the adjoining tract owned by the grantor"). Although the presence of the grantor's homestead on the retained land may be an indication of an intent to benefit that land, our cases do not suggest, as the trial court reasoned, that the restrictive covenant in ...