Hanley v. Misischi

• Decision Date: 19 March 1973
• Docket Number: No. 1580-A,1580-A
• Citation: 111 R.I. 233,302 A.2d 79
• Parties: Arthur F. HANLEY et al. v. Herbert R. MISISCHI et al. ppeal.
• Court: Rhode Island Supreme Court

Page 79

302 A.2d 79

111 R.I. 233

Arthur F. HANLEY et al. v. Herbert R. MISISCHI et al.

No. 1580-Appeal.

Supreme Court of Rhode Island.

March 19, 1973.

Tillinghast, Collins & Graham, Edwin H. Hastings, Providence, for appellants

Edwards & Angell, John H. Blish, Providence, for appellee, Elizabeth F. B. Holton.

OPINION

KELLEHER, Justice.

This is an appeal from a judgment entered in the Superior Court denying and dismissing an appeal taken pursuant to G.L.1956 (1970 Reenactment) § 45-23-20 wherein that court affirmed the decision of the Warwick Planning Board of Review ¹ approving a proposed subdivision of land.

The appellants are the owners of single-family homes located in Warwick on all sides of a horseshoe-shaped street called St. George Court. Each corner of the shoe connects with Algonquin Drive. The court and its lots were platted by the Estate of Alice Francis Brown. The plat was recorded on October 2, 1939 and is known as 'Governor Francis Farms Subdivision No. 2.' All the lots located on Subdivision No. 2 are subject to a Declaration of Special Covenants and Restrictions recorded by the trustee under the will of Alice Francis Brown in July, 1941. Among the restrictions contained in the trustee's declarations is one which specifies that '(s)aid lots shall be used solely and exclusively for single family private residence purposes.'

Sometime after 1954, there was an apportionment between the heirs of Alice Francis Brown of the land remaining in the estate. Consequently, Elizabeth F. B. Holton (Mrs. Holton) took title to lot 45 on Subdivision No. 2 ² and other parcels of land situated to the south and the east of the plat. Lot 45 is located at just about the deepest point of the horseshoe. Life on St. George Court remained comparatively tranquil until December, 1969 when the appellants were notified that Mrs. Holton was seeking the approval of the Warwick Planning Board for a proposed plat of land which was to be known as 'Governor Francis Farms Subdivision No. 20.' The plat was to be composed of 12 lots. Access to the new development was to be gained by the installation of a street to be known as Pin Oak Drive which would begin on St. George Court, cross over lot 45 and continue on for a total distance of 600 feet. Pin Oak Drive is designed as a culde-sac in that all vehicular traffic entering or leaving Subdivision No. 20 could do so only by traversing lot 45. ³ The new plat would be subject to restrictions identical to those governing the use of Subdivision No. 2.

Throughout this litigation, the residents of St. George Court have stressed that apart from lot 45 Mrs. Holton had other access routes to her proposed subdivision. One called for the use of the so-called Spring Green Road extension. Title to the extension is in Mrs. Holton and her brother with others having easements or other rights of passage over the way. Mrs. Holton said she approached the other parties having an interest in the extension but they would not allow it to be used as a public street. The record is silent as to what was the extent of these negotiations. The trial justice found that this plan was not feasible since Mrs. Holton had no control of the private portion of Spring Green Road.

The appellants presented evidence that a roadway could be built entirely on Mrs. Holton's property which would give access to the 12 lots by way of Spring Green Road. This layout would cost more than the Pin Oak Drive concept-the cost was estimated as being in the neighborhood of $25,000. There was a difference of opinion between two engineers as to whether appellants' proposal would confront the residents of St. George Court with a drainage problem. The trial justice made no finding on this phase of the evidence.

The trial justice's findings, or lack of findings, as to alternate routes of access available to Mrs. Holton is not crucial to the present controversy. The determinative issue of this appeal is: whether the restriction which states that the lots on Subdivision No. 2 shall be used solely and exclusively for single-family residence purposes prevents Mrs. Holton from constructing a street across lot 45 which will give access to homes to be built on her new plat. We believe that it does.

The residents of St. George Court and Mrs. Holton have presented us with an impressive array of decisions which they maintain support their respective positions. Most of their references can be found in 25 A.L.R.2d 904 (1952) and its Later Case Service. We shall first discuss five of the cases cited by Mrs. Holton. As to be expected, the cases to which she alludes support the use of lots restricted to residential use as roadways to reach similarly restricted property.

In Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85 (1939), it was a governmental unit which was seeking to use a lot as a connector road between two residential developments. In the case before us, we are not concerned with any effort by the city of Warwick to acquire lot 45 for highway purposes. In fact, the court in Anderson specifically noted that it was not deciding the question of the enforceability of the restrictive covenants 'between the parties thereto and their successors with notice.'

In Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619 (1954), the owner of a certain plat submitted a replat wherein a portion of two lots would be a street which would service the lots in the original plat. On these facts, it was held that there was no violation on the restriction limiting the use of the lots to residential purposes.

Another case cited to support Mrs. Holton's contention is Bove v. Giebel, 169 Ohio St. 325, 159 N.E.2d 425 (1959). There, the defendant, who owned a six-acre parcel of land abutting a plat whose lots were restricted 'for residence purposes only,' purchased a 25-foot strip over one of the lots. This gave him a private drive so that the occupants of two residences to be built on the rear acreage could have a means of ingress and egress. The defendant had agreed that the plat restrictions could be applied to his parcel. The Ohio Supreme Court observed that the covenant did not limit the use of the property to residence purposes...