Hamm v. Wilson, (No. 6979.)
| Decision Date | 13 December 1929 |
| Docket Number | (No. 6979.) |
| Citation | 169 Ga. 570,151 S.E. 11 |
| Parties | HAMM. v. WILSON et al. |
| Court | Georgia Supreme Court |
(Syllabus by Editorial Staff.)
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Action by H. H. Wilson and others against J. G. Hamm. Judgment for plaintiffs, and defendant brings error. Reversed.
See also 148 S. E. 593, 168 Ga. 699.
Spence & Spence, of Atlanta, for plaintiff in error.
Leon S. Tomlinson, of Atlanta, for defendants in error.Syllabus Opinion by the Court.
RUSSELL, C. J. [1] 1. "The restriction 'for residence purposes, ' as contained in the deed involved in this case, does not prohibit the erection of apartment houses used exclusively for residence purposes." Courtney v. Hunter, 159 Ga. 321, 125 S. E. 714, and cit.
2. A restrictive covenant in a deed of conveyance, stipulating that "the lot shall not be subdivided, and only one residence shall be erected on each lot, " is not broken by the building of a separate dwelling house on either lot, although the dwelling houses on the two separate lots both join a brick party wall built on the line between said lots. Hamm v. Wilson, 168 Ga. 670, 148 S. E. 593. The deed here in question contains no provision debarring the purchaser of the lots from building up to the dividing line of each lot; so there is no breach of the covenant that "only one residence shall be erected on each lot."
3. The judge of the superior court based his ruling in this case upon the ground that an apartment house is more than one residence, and therefore the restriction mentioned above would be violated by the erection of an apartment house. In Hamm v. Wilson, supra, this court held that an apartment house consisting of more than one section was nevertheless a residence, and that a provision restricting the use of a lot to residence purposes was not violated by the erection of one or more residences for use by different occupants, although the building as a whole was covered by the same roof. A restriction that "only one residence shall be erected on each lot, " under a well-settled rule, will not be extended beyond its plain meaning. The language of the restriction in this case makes no reference to anything except the nature of the building and the limitation of one building on each lot. An apartment house is only one building. It is a residence building only, designed, it is true, for the occupancy of more than one resident, but the entire building is restricted to residential purposes; and if the grantor had so desired, a restriction could easily have teen framed which would have debarred the erection of an apartment house upon any or all of the lots.
4. The court erred in granting the injunction.
Judgment reversed. All the justices concur, except
HINES, J. (dissenting). A statement of the facts of this case is necessary to a clear understanding of the question involved and the proper decision thereof. A tract of land was subdivided into lots for residences, and was named Highland Park subdivision. These lots were laid out and sold under a general scheme under which their use was subject to certain restrictive agreements. Two of these restrictions were: (1) That these lots "shall be used only for residential purposes, and no business house or structure other than a residence and its necessary outbuildings shall be erected thereon, " and (2) that a "lot shall not be subdivided, and only one residence shall be erected on each lot." J. C. Hamm acquired lots 1 and 4 in block O of said subdivision. In his deeds to said lots the above restrictions are embraced. These lots adjoin each other. Lot 1 fronts on the southwest corner of Highland and Southview avenues, and extends back from Highland avenue along Southview avenue to lot 4, which fronts 55 feet on the latter avenue, and extends southward 194.8 feet. Hamm was preparing to erect an apartment house on lot 1 and to extend back on lot 4. In erecting said apartment house he contemplated separating the building into two sections by a wall built on the boundary line between the two lots, and to have a separate entrance to said sections from the above avenues. The owners of other lots in said subdivision, who purchased their lots under said general scheme and who would be affected by the erection of this building, filed their petition to enjoin the same, because the erection thereof violated the above restrictive covenants. The trial judge granted an injunction restraining the erection of the building, and the defendant excepted.
The restriction that these lots shall "be used only for residential purposes" does not prohibit the erection of apartment houses on such lots, used exclusively for residences, Courtney v. Hunter, 159 Ga. 321, 125 S. E. 714. But the second restriction, that a lot in said subdivision "shall not be subdivided, and only one residence shall be erected on each lot, " when construed in connection with the first restriction, prohibits the erection on a lot in said subdivision of a duplex or apartment house, the apartments being intended to be used by tenants as separate residences. The language in the second restriction, that "only one residence shall be erected on each lot, " prohibits the erection of any building except a dwelling house for a single family. In a lease under which the demised premises should be used "strictly as a private dwelling, " the premises could not be used as a boarding house. Gannett v. Albree, 103 Mass. 372. There is a very broad distinction between a private residence and a flat or apartment house. Where the covenant provided that the premises conveyed should not be used for any other purpose than a private dwelling, or private dwellings, such covenant prohibited the erection of a three-story flat with five rooms on a floor suitable for three families. Sklllman v. Smatheurst, 57 N. J. Eq. 1, 40 A. 855. In Rogers v. Hosegood, 2 Ch. 388, 69 L. J. Ch. 652, it was held that a covenant that every house to be erected should be adapted for and used as and for a private residence only is broken by the erection of a block of residential flats. In Levy v. Schreyer, 27 App. Div. 282, 50 N. Y. S. 584, it was held that a building constructed sothat it can be occupied by three families living separate and apart is not a private dwelling within the provision of a covenant not to erect any tenement houses or any houses except private dwellings. In Koch v. Gorruflo, 77 N. J. Eq. 172, 75 A. 767, 140 Am. St. Rep. 552, it was held that: "A covenant prohibiting anything but a private residence is violated by the erection of a flat, apartment or community house, designed and intended for occupancy by two or more families." The view has been taken in a number of cases that a restriction against any building except "one" or "a" dwelling house prohibits any building except one designed for a single family. Thus, "A restriction in a deed that the premises shall not be occupied 'except for one dwelling-house to each lot, ' is violated by the erection of a two-story building designed for two dwellings, one to occupy the ground floor and one the second floor, and each to have a separate entrance." Harris v. Roraback, 137 Mich. 292, 100 N. W. 391, 109 Am. St. Rep. 681.
A condition in the conveyance of lots on a tract of residence property, that no building other than a dwelling house shall be erected on the lot, prohibits the construction of a double house on the lot, although it is under...
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