Greer v. Bornstein

• Decision Date: 02 December 1932
• Citation: 246 Ky. 286
• Parties: Greer et al. v. Bornstein.
• Court: United States State Supreme Court — District of Kentucky

Page 286

246 Ky. 286

Greer et al. v. Bornstein.

Court of Appeals of Kentucky. Chancery Branch, First Division.

Decided December 2, 1932.

1. Covenants. — Where land company's advertisements and deeds allowed improvements only for residential purposes, evidence showed general building scheme, entitling one lot owner to enforce restrictive covenant against another.

2. Covenants. — Establishment of business and billboards outside platted territory and remote from lot therein held not changes which would prevent another lot owner from enforcing restrictive residential covenant.

3. Covenants. — Respecting restrictive covenants, changes in residential neighborhood depend on their number and character, and are immaterial if not interfering with lot owners' enjoyment, or not showing general intention to abandon plan.

4. Injunction. — Legal remedy held inadequate, entitling lot owner to enjoin another owner from erecting billboard in violation of covenant allowing improvements only for "residential purposes."

In cases involving a violation of a restrictive building covenant, remedy at law is commonly inadequate, since resulting damages are usually not measurable in money. Freedom from obstructions to view, marring of symmetry of general plan of development, encroaching of disturbing influences, and the like, are difficult to measure in dollars, and hence equity will interfere to preserve the status, rather than relegating complaining party to his action at law, which, after its relief is exhausted, leaves disturbing conditions (which in all probability are perpetual) still existing, and directs him to be content with a small additional monotary award.

Appeal from Jefferson Circuit Court

B.F. WASHER, EDWIN ABRAHAM and P.H. SAVAGE for appellants.

LAWRENCE S. GRAUMAN for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

Prior to February, 1913, a corporation known as the Cherokee Court Land Company, acquired a tract of land in the extreme suburbs of the city of Louisville, and situated east of south from Bardstown road, and as a part of the tract it acquired a narrow strip from the main body to the Bardstown road for entrance purposes. It platted all the land so acquired by it into lots, boulevards, streets, and alleys, and had the plat recorded in the county court clerk's office, and named the addition "Cherokee Plaza." The acquired neck or strip of land projecting from the main body of the plat to Bardstown road was partly appropriated to the making of an elaborate and costly curving entrance which was designated "Boulevard Napoleon," and from it other avenues and streets on the plat were reached. The boulevard did not consume all of the acquired strip extending out to the Bardstown road, and the remainder was divided into lots shown on the recorded plat. Lot No. 3 is a part of that strip and it is the only one in the plat that touches Bardstown road. It is owned by defendant and appellant, Frankie S. Greer, who also owns lot No. 4, which adjoins lot No. 3 on the south, and appellee and plaintiff below, Ale Bornstein, owns lot No. 5, which adjoins No. 4 on the south.

After the recording of the plat, the Cherokee Court Land Company had a public sale of lots in Cherokee Plaza, which was extensively advertised by posters, circulars, in newspapers, and otherwise. In all of such advertisements it was expressly stated, with emphasis, that all improvements on any of the lots of Cherokee Plaza "shall be used for residence purposes only," and all residence buildings to be erected on any of the lots "shall sit back at least 30 feet from the front property lines." Those restrictions did not appear upon the recorded plat, but they were inserted in every deed made by the company to any of the lots, the most of which it sold, and all of its vendees who later conveyed their lots inserted the same restrictive covenants in their deeds and which was and is true with reference to the chain of title of both the plaintiff and defendant in this case.

A short while before the institution of this action by plaintiff against defendant in the Jefferson circuit court, the latter entered into a contract with her co-defendant and appellant, Consolidated Poster Advertising Company, whereby she gave to it the right and privilege to erect on that portion of lot No. 3 owned by her bordering on Bardstown road, a large and conspicuous advertising board, and when this action was instituted that structure was about to be built; whereupon plaintiff, as the owner of lot No. 5 in Cherokee Plaza, brought this equity action against her and her licensee, or lessee, to enjoin them from erecting the structure contemplated, on the ground that if they did so it would be a violation of the restrictive covenants contained in defendant's deed, and which inured to plaintiff's benefit, because of his ownership of one of the lots in Cherokee Plaza.

Defendants resisted the relief sought by plaintiff in his petition upon grounds argued by their able counsel in this court, and which, as stated in the brief, are: "Appellant relies on four major contentions, (a) no showing by appellee of any general building scheme; (b) changes in the neighborhood making the lot in question available only for business and of no value for other purposes; (c) appellee's showing that he has a complete remedy at law, and (d), in the absence of an established building scheme, the restrictions of a deed are limited as to benefits to the grantor and his remaining property." The evidence consisted mostly in affidavits which the parties agreed might be read as the depositions of the affiants, and a stipulation of facts contained in the record. Upon submission the court sustained the prayer of plaintiff's petition, and perpetually enjoined defendants as therein requested, and from that judgment they prosecute this appeal.

The individual defendant has her residence on lot No. 4 adjoining that of plaintiff, and the stipulation of facts shows that in the erection of those residence buildings the requirements of the restrictive covenants in their deeds were strictly observed, and the proof also shows the same to be true as to improvements by all of the respective owners of the various sold lots from Cherokee Plaza, and which is by far the larger portion of them; the cost price of such residence buildings averaging about ten or twelve thousand dollars. The facts that we have stated with reference to the sale advertisements containing a notice of the restrictions were not contained in the stipulations, but they are uncontradictedly proven by all the testimony introduced and heard at the trial, and it is conceded that the contemplated erection of the billboards would constitute a violation of the restrictions under our opinion in the case of Starck v. Foley, 209 Ky. 332, 272 S.W. 890, 891, 41 A.L.R. 756, and which counsel for defendants do not dispute. They do, however, strenuously insist that the facts do not establish that the corporation in exacting and inserting in all its deeds to lots such restrictive covenants did so for the protection of a general building scheme of the corporation which it contemplated, nor that by doing so it intended to or did provide for the protection of each...