Hill v. Ogrodnik

• Decision Date: 10 May 1955
• Docket Number: No. 2312,2312
• Citation: Hill v. Ogrodnik, 113 A.2d 734, 83 R.I. 138 (R.I. 1955)
• Parties: Charles G. HILL et al. v. Raymond F. OGRODNIK et al. Eq.
• Court: Rhode Island Supreme Court

Page 734

113 A.2d 734

83 R.I. 138

Charles G. HILL et al. v. Raymond F. OGRODNIK et al.

Eq. No. 2312.

Supreme Court of Rhode Island.

May 10, 1955.

Reargument Denied June 3, 1955.

James L. Taft, Providence, for complainants.

John Quattrocchi, Jr., Providence, for respondents.

CAPOTOSTO, Justice.

This is a bill in equity to remove, as a cloud on title, certain building restrictions appearing in complainants' deed to a lot on a plat of land in the city of Cranston. Service personally or by publication was had on all parties in interest. The respondents August F. and Katherine Clauberg, husband and wife, filed an answer in the nature of a cross bill to enjoin violation of the restrictions. A decree pro confesso was entered as to all other respondents. No procedural question is involved. The cause was heard in the superior court on bill, answer, replication and proof. A decree was thereafter entered declaring the enforcement of the restrictions would be inequitable and that they constitute a cloud upon complainants' title. The cause is before us on the appeal of the Claubergs from the entry of that decree.

It appears in evidence that in 1894 a large tract of land, extending southerly and easterly for a considerable distance from the intersection of Reservoir and Park avenues in the city of Cranston, was divided into about 478 lots. The plat thereof, designated as the 'Auburn Plateau' and hereinafter at times referred to as the plat, was duly recorded in the land records of that city. Reservoir avenue, now a wide four-lane concrete highway that is heavily traveled by both local and interstate traffic, runs generally north and south. Park avenue, which is not as wide but similar in character, runs about east and west. The deeds to the lots on the plat are subject to the following restriction which raises the basic issue in this cause: '2. That no building shall be erected on said premises except a dwelling house and said dwelling house when erected shall not be occupied or used for any other purpose.' Whether that restriction binds complainants' lot under present conditions is the only question at issue.

The complainants, husband and wife, in January 1951 with knowledge of the restriction became the owners as joint tenants of lot No. 310 on the plat. According to the description in the deed, that lot is located 'at the southwesterly corner of Reservoir Avenue and Harwood Street in the City of Cranston,' which said street enters but does not cross the avenue from the east. It has a frontage of about 40 feet on Reservoir avenue and, approximately maintaining that width, extends in an easterly direction for some 87 feet along the southerly side of Harwood street. For a more particular specification of its boundaries, reference is hereby made to the description in the bill of complaint.

The respondents Raymond F. and Cecilia M. Ogrodnik are the owners of lot No. 311 which fronts on Reservoir avenue on its northerly side and abuts complainants' lot. They were served with personal notice of this proceeding, but allowed a decree pro confesso to be entered against them, apparently because a business enterprise has been and presently is conducted on their premises. The respondents Clauberg, who were also served with personal notice, own lot No. 309. That lot fronts northerly on Harwood street and on its west adjoins the rear of complainants' lot 310. For reasons which will presently appear, it is to be clearly understood that this opinion is directed solely to a determination of the conditions immediately surrounding complainants' lot, and that our decision respecting the enforceability of the restriction in question concerning that lot is not to be considered as a precedent in the future with reference to any other lot on the plat.

The facts are practically undisputed. The only evidence in the cause came from complainant Charles G. Hill and his witness Romeo S. Picerne, a real estate expert. Hill testified that he already had received a permit from the building inspector, and that he sought the removal of the restriction in order to obtain a mortgage from a certain bank so that he might erect a small one-story building on his lot for the sale of furniture.

The testimony of the real estate expert was in substance as follows: That starting at the intersection of Reservoir and Park avenues and proceeding southerly on Reservoir avenue for a number of streets before and after Harwood street, at least 75 per cent of the land on both sides of that avenue was used for business of various kinds; that complainants' lot was just within the easterly boundary of an area zoned by the city for business; and that the Clauberg property and all other lots to the east of that boundary were not affected by any provision of the zoning ordinance and constituted a community of 'nice homes.'

In the course of his enumeration and description of the various business enterprises on Reservoir avenue for the distance hereinbefore indicated, the witness testified that on the easterly side of the avenue and at the corner opposite complainants' lot was the so-called Christy Building, built in 1931 or 1932 and now occupied by the Barnes Rubber Company; that for a number of years complainants' lot had been used only for parking purposes by customers of that concern and of other business establishments in the vicinity; that the trend of development on Reservior avenue southerly from Park avenue was definitely to business; and that complainants' lot was no longer suitable for a dwelling house.

Upon consideration of all the evidence, including a number of photographs, the trial justice concluded that the immediate neighborhood of complainants' lot had changed to such an extent from residential to business that 'neither the former nature, state and characteristics of said lot No. 310 nor its former value for residential purposes can be restored * * * but it has substantial value and is readily usable and marketable as business and commercial property.' He therefore found 'as a fact that the purpose for which said restrictions were imposed have ceased to exist and that they are no longer enforceable by the owners of other lots on said plat.' A decree in accordance with such decision was thereafter entered.

In modern times bills to remove restrictive covenants as a cloud on title constitute a well-recognized ground of jurisdiction in equity. See 33 Harv.L.Rev. 813, The Progress of the Law, 1918-1919; 50 Harv.L.Rev. 171, Fifty Years of American Equity; 50 Harv.L.Rev., 214-218. Generally speaking, the purchaser of a lot in a uniformly restricted real estate development, who is himself without fault, is entitled to rely upon the protection of a restrictive covenant so...