Hall v. Church of the Open Bible

• Decision Date: 06 May 1958
• Citation: 89 N.W.2d 798,4 Wis.2d 246
• Parties: Norman W. HALL et al., Respondents, v. The CHURCH OF THE OPEN BIBLE, a corporation, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 798

89 N.W.2d 798

4 Wis.2d 246

Norman W. HALL et al., Respondents, v. The CHURCH OF THE OPEN BIBLE, a corporation, et al., Appellants.

Supreme Court of Wisconsin.

May 6, 1958.

A. W. Ponath, Appleton, for appellants.

Alfred S. Bradford, L. H. Chudacoff, Appleton, for respondents.

MARTIN, Chief Justice.

In October of 1953 the Hall-Heenan Plat to the city of Appleton was approved, accepted and recorded. On June 10, 1954 the owners of the lands within said plat made restrictive covenants pertaining to said lands, which were recorded on August 12, 1954. The following is the restriction here involved:

'No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.'

The defendants Schneider acquired the property in question by a deed incorporating the covenants by appropriate reference on September 6, 1957. Thereafter they disposed of it to the Church of the Open Bible by deed which also included the covenants by reference. Shortly thereafter the Church commenced construction of a church building on said premises. The deed from the Schneiders to the Church was not of record at the time this action was commenced.

The trial court held that there was no issue of fact presented by the pleadings and affidavits. It held that the restrictive covenant is reasonable and enforceable and in plain and unambiguous language expressly excludes all buildings other than one detached single-family dwelling and a private garage.

Appellants argue that the language "No lot shall be used except for residential purposes' is ambiguous as to meaning,' and contend that they should be permitted to introduce evidence to clarify the ambiguity. We cannot see how the language could be made more plain. There being no ambiguity, the intent must be arrived at from such language. Polebitzke v. John Week L. Co., 1914, 157 Wis. 377, 147 N.W. 703. Parol evidence is not admissible to establish any intent other than that clearly expressed in the instrument itself.

It is a well established rule that a covenant restricting land to residential use, inserted by the proprietor in a conveyance of his lands, inures to the benefit of all the purchasers where it is inserted for the purpose of carrying out a general plan or scheme of development, and that it constitutes at least an equitable servitude upon the land, and constitutes a valuable property right which a court of equity will enforce in the absence of facts and circumstances making such enforcement unjust or inequitable. Boyden v. Roberts, 1907, 131 Wis. 659, 111 N.W. 701; Ward v. Prospect Manor Corporation, 1926, 188 Wis. 534, 206 N.W. 856, 46 A.L.R. 364; Fuller v. Town Board, 1927, 193 Wis. 549, 214 N.W. 324.

Appellants' position seems to be that the restriction, while enforceable as against industrial or commercial use, is void as against churches. This resolves itself into the question whether the restrictive covenant is void as against public policy.

As the trial court pointed out, the law recognizes a substantial difference between the exclusion of churches by zoning ordinances and by restrictive covenants. The majority of courts, on constitutional grounds, refuse to uphold the exclusion of churches by zoning. Appellants' argument as to the value of religious institutions to society might be well advanced if we had a zoning ordinance before us. Shee State ex rel. Synod of United Lutheran Church v. Joseph, 1942, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274. But restrictive covenants excluding churches have universally been enforced. See Vol. 70, Harvard Law Review, 1437. A basic reason for the difference which the law recognizes would seem to be that zoning is a governmental action while restrictive covenants are agreements between private individuals. ...