Grange v. Korff
| Decision Date | 11 December 1956 |
| Docket Number | No. 49090,49090 |
| Citation | 248 Iowa 118,79 N.W.2d 743 |
| Parties | Ross E. GRANGE, F. W. Peshek, R. Michael Ford, Roger M. Lovelett, Anthony J. Barron, Glenn H. Antrim, John J. Leslie, John A. McGowan, George McGowan, Kenneth Lund, W. E. McNary, R. A. Swanson, J. C. Palmer, Paul H. Palmer, Lewis C. Newman, H. C. Cook, William F. Bena, Frank E. Sanders, Wesley Soukup, Audrey D. Corithers and Barbara Dobias, Appellees, v. Carlton J. KORFF and Lula Belle Korff, Appellants, John McGowan and Libbie McGowan, Intervenors--Appellees, County of Linn, State of Iowa; Board of Supervisors of Linn County, Iowa, and the members thereof; County Zoning Commission of Linn County, Iowa, and the members thereof; County Engineer of Linn County, Iowa, as the Executive Officer of said Zoning Commission of Linn County, Iowa, Third Party Defendants-Appellees. |
| Court | Iowa Supreme Court |
Fahey & Cimprich and L. D. Dennis, Cedar Rapids, for appellants.
Adam A. Kreuter and George C. Claassen, Cedar Rapids, for appellees.
Holmes & Holmes, Cedar Rapids, for intervenors-appellees.
Willis A. Glassgow and Bryce M. Fisher, Cedar Rapids, for third party defendants-appellees.
This is a suit in equity to enjoin defendants from constructing and operating an auto trailer court in a suburban residence area outside the city of Cedar Rapids as in violation of building restrictions of which defendants had notice. Following trial a decree granted plaintiffs and intervenors the relief sought. Defendants appeal.
The area consists of 31 numbered lots and is designated Auditor's Plat 120, Linn County, commonly referred to as Lincoln Heights. It is about five miles east of the center of the Cedar Rapids business district. Defendants Carlton J. Korff and wife purchased lot 31 for $6,000 by contract dated July 14, 1950. The deed to them was made a month later. Lot 31 is in the northwest corner of the plat, contains 8.2 acres, and has a dwelling house on it. The other lots vary in size but are much smaller than 31, although considerably larger than the average city lot. After defendants acquired their lot they did grading, built a road and otherwise improved the land as a site for an auto trailer court they planned to operate from their dwelling.
Plaintiffs are 21 owners of most of the other lots in the plat. Intervenors John McGowan (also a plaintiff) and wife own lot 30 adjoining defendants' lot 31 on the east. Plaintiff Grange started the suit in July, 1952. Amended petition was filed on behalf of all plaintiffs in February, 1953. Lots in the plat comprise a strictly residential area. No business is conducted there although one resident near the southeast corner raises a few dogs, apparently for sale, and has a small sign hanging from a post advertising his kennels.
In February, 1920, Frank B. Lane, a real estate broker in Cedar Rapids, acquired title to the land in question. Lane was associated in the real estate business with H. L. Nehls with whom he officed. They owned and controlled a corporation known as Nehls-Lane Co. Nehls controlled another corporation known as H. L. Nehls Investment Co. Nehls & Lane laid out streets, built a few houses and did some other work on the land. Auditor's Plat 120 was filed for record September 13, 1921.
The Cedar Rapids Gazette, a daily paper, for September 23, 1921, carried an advertisement, more than a half page in size, describing claimed advantages of 'Lincoln Heights, Cedar Rapids' beautiful new suburban homesites' and stating the lots would go on sale the following day. Also that 'improvements must conform to the standard of desirable, attractive homes.' The ad bore the name and address of Nehls-Lane Company as sponsor.
Defendants call attention to the statement in this ad that Lincoln Heights 'comprises 30 tracts.' From this they argue it was not intended that building restrictions, hereinafter referred to, should apply to defendants' lot 31. We are not inclined to attach much importance to this statement. The ad contained a large reproduction of the plat showing the 31 numbered lots and the printed matter stated they are as large as '25 city lots each.' This could refer only to lot 31. The ad clearly implied, if it did not expressly state, the entire plat was for homesites.
October 24, 1921, Frank B. Lane and wife deeded lot 31 to Wm. McGowan and adjoining lot 30 to intervenor John McGowan, son of William. In purchasing lots 30 and 31 the two McGowans dealt with H. L. Nehls who told them the deeds to all lots would be restricted to a house and outbuildings. Each deed to the McGowans contained this provision:
November 12, 1921, Frank B. Lane and wife deeded lot 14 to A. L. Peet. The deed contained substantially the same provision, quoted above, as the McGowan deeds except that the dwelling house must cost not less than $2,500, instead of $2,000, and the building line was fixed at 25, rather than 20, feet from the front of the lot. Lot 14 faces the southwest boundary of the plat, on a different road from that along lot 31. Before deeding lot 14 to Peet, Lane had contracted to sell it to Florence Risley but the contract was never performed. It contained no building restrictions.
December 19, 1921, Lane and wife conveyed lots 26 and 27 to James E. Patterson and wife and deeded to Nehls-Lane Company all 31 lots except 14, 26, 27, 30 and 31 which, as stated, had been conveyed to others. The two deeds to the Pattersons and the one to Nehls-Lane contained no restrictions. Before the end of 1923 Nehls-Lane Company or its grantee, Nehls or Lane, conveyed 14 lots by deeds containing substantially the restrictions heretofore quoted from the deeds to the McGowans of lots 30 and 31 except that these later deeds provide: 'It being the intention of the owners of said Auditor's Plat 120 that all of said Auditor's Plat shall be used only for private residence purposes.'
The McGowan deeds state the lot thereby conveyed, rather than all the plat, shall be used only for private residence purposes. Two other lots were deeded by Nehls, grantee from Nehls-Lane Co., in September, 1923, subject to the restrictions found in the deeds to the McGowans and Peet. Thus 19 of the 31 lots were conveyed by Lane, Nehls or their corporation subject to one or the other of these two sets of restrictions.
Lot 25, like 26 and 27, was deeded without restrictions although they have been used for residence purposes. The remaining nine lots were conveyed between 1925 and 1928 'subject to reservations and building restrictions of record.' Grantor in these deeds was H. L. Nehls Investment Co. which had acquired them from or through Nehls-Lane Company. All the deeds we have referred to were duly recorded.
I. The first proposition defendants-appellants argue is that the 31 lots were never sold under any general building scheme of which they had knowledge but were indiscriminately sold by Lane and Nehls with or without restrictions.
We will pass for now the question of defendants' knowledge or notice to them of the restrictions. There is no doubt Lane deeded lot 31 which defendants now own to William McGowan subject to the provision 'said lot shall be used only for private residence purposes' and to the other restrictions above quoted. We are agreed the use defendants propose to make of it, operation of a trailer court, is a commercial one, in violation of the restriction. Thodos v. Shirk, Iowa, 79 N.W.2d 733; City of New Orleans v. Lafon, La.App., 61 So.2d 270, 274; Cantieny v. Boze, 209 Minn. 407, 296 N.W. 491, 493, 173 A.L.R. 321, 323; Deitrick v. Leadbetter, 175 Va. 170, 8 S.E.2d 276, 127 A.L.R. 849, 852. See also Huff v. City of Des Moines, 244 Iowa 89, 97, 56 N.W.2d 54, 58.
The vital question is whether plaintiffs or intervenors are in position to enforce the restrictions in the deed to William McGowan. It is unimportant that the deed to defendants contains no restrictions provided they had notice of the restrictions in their chain of title. Thodos v. Shirk, supra; Hegna v. Peters, 199 Iowa 259, 261-265, 201 N.W. 803; Burgess v. Magarian, 214 Iowa 694, 697, 243 N.W. 356.
Plaintiffs and intervenors may enforce these restrictions if they were intended to benefit the other lots in the plat and not merely the grantor personally. The ultimate question therefore is what was the intention of the parties to the William McGowan deed. 14 Am.Jur., Covenants, Conditions and Restrictions, sections 311, 319; 26 C.J.S., Deeds, § 167(1), page 1141.
This question of intention is to be determined not only from the terms of the deed but also from the situation of the parties and the surrounding circumstances. Thodos v. Shirk, supra, Iowa, 79 N.W.2d 733; Johnson v. Robertson, 156 Iowa 64, 74, 76, 135 N.W. 585, Ann.Cas.1915B, 137; Annotation, 21 A.L.R. 1281; 26 C.J.S., Deeds, § 167(1), page 1141. See also Melson v. Ormsby, 169 Iowa 522, 528, 151 N.W. 817.
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...they may be enforced, even though, through inadvertence or otherwise, they have not been imposed on one of the parcels. Grange v. Korff, 248 Iowa 118, 79 N.W.2d 743; Turner v. Brocato, 206 Md. 226, 111 A.2d 855; Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 60 A.L.R. 1212. The principle h......
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