Himmel v. Hendler

• Decision Date: 11 June 1931
• Docket Number: 38.
• Citation: 155 A. 316,161 Md. 181
• Parties: HIMMEL v. HENDLER ET AL.
• Court: Maryland Court of Appeals

155 A. 316

161 Md. 181

HIMMEL v. HENDLER ET AL.

No. 38.

Court of Appeals of Maryland

June 11, 1931

Concurring Opinion Filed June 25, 1931.

Appeal from Circuit Court No. 2 of Baltimore City; George A. Solter Judge.

Suit by Jeannette Himmel against L. Manuel Hendler and another. From a decree of dismissal, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Sylvan H. Lauchheimer and Joseph S. Goldsmith, both of Baltimore for appellant.

C. Alexander Fairbank, Jr., and Joseph Addison, both of Baltimore (M. Henry Goldstone, of Baltimore, on the brief), for appellees.

DIGGES J.

The question presented for determination by this appeal is: Does the structure proposed to be erected by the appellees (defendants below) violate the restrictive covenant contained in the deed under which they hold? The chancellor determined that it did not, and dismissed the bill of complaint which sought to enjoin the defendants from erecting the proposed fence. From that action the plaintiff appealed. The facts necessary for an understanding of this question may be stated as follows: The plaintiff and defendants are the owners of adjoining lots fronting on Lake drive in Baltimore city. These properties are located in a beautiful residential section, and are each improved by handsome dwellings. Both of the parties derive their title from a common source, one Michael Stein; the plaintiff acquiring her lot from Stein by mesne conveyances, while the deed of the defendants for their lot came directly from Stein. On November 15, 1920, Stein, at that time being the owner of both lots, conveyed the lot now belonging to the plaintiff to Samuel Blum. This deed, after describing the lot conveyed, contained the following provision: "This deed made subject to the covenants, conditions and restriction agreed upon between parties of the first and second parts hereto, which are hereby specifically agreed to by the said parties of the first and second part, and which are intended by the parties hereto to be covenants running with and binding the respective properties of the parties hereto as herein specified or referred to and which are as follows: The said grantee covenants and agrees for himself, his heirs and assigns, that he and they will leave open and not build thereon the strip of land ten feet wide along the entire westernmost side of the lot herein described adjoining the remaining portion of the said whole tract conveyed as aforesaid by William L. Straus and wife to the parties of the first part hereto by deed dated June 1, 1920, and recorded among the land records of Baltimore City in Liber S. C. L. No. 3595 folio 22 etc., retained by the said parties of the first part hereto so that said ten feet of the land shall always remain open and not be built upon and that the said grantee, his heirs and assigns, will not at any time hereafter construct, erect, or cause or permit to be constructed or erected on any part or portion of the land conveyed hereby any building or structure to be used for any purpose other than a private dwelling and no such building or structure shall exceed four stories in height, and accordingly said grantee covenants and agrees for himself, his heirs and assigns, that he and they will not any time hereafter construct or erect or cause or permit to be constructed or erected on any part or portion of the land hereby conveyed any store, shop, factory, or any building or structure of any kind or character whatsoever other than for private dwelling purposes only and not exceeding four stories in height, but nothing herein contained shall be construed as restricting or prohibiting the use of such four story dwelling as and for an apartment house. Said grantors, who are the owners of the remaining portion of the lot of ground conveyed as aforesaid by William L. Straus and wife to the parties of the first part above referred to, being the portion thereof not comprised in the lines of the lot hereby conveyed, hereby covenant and agree for themselves, their heirs and assigns, that they will leave open and not bulld upon the strip of land ten feet wide along the entire easternmost side of said remaining portion and adjoining the said ten foot strip hereinbefore agreed to be similarly left open by the grantee. And the grantors further covenant and agree for themselves and their heirs and assigns that they will not at any time hereafter construct or erect or cause or permit to be constructed or erected on any portion of the said remaining part of said lot conveyed to them as aforesaid by William L. Straus and wife any building or structure to be used for any purpose other than a private dwelling and no such building or structure shall exceed four stories in height. And the said grantors accordingly hereby further covenant and agree for themselves, their heirs and assigns, that they will not at any time hereafter construct or erect or cause or permit to be constructed or erected on any part of the remaining portion of said lot conveyed by William L. Straus and wife to them as aforesaid any store, shop, factory, building or structure of any kind or character whatsoever other than one for private dwelling purposes only not exceeding four stories in height, but nothing herein contained shall be construed as restricting or prohibiting the use of such four story dwelling as and for an apartment house."

On May 2, 1927, Stein and wife conveyed to the appellees that lot which was made subject to the restrictions and covenants contained in the aforesaid deed to Blum. It appears, therefore, that at the time these proceedings were instituted the appellant owned the lot conveyed by the Blum deed, and the appellees owned the lot adjoining, subject to the covenants agreed to by Stein in the Blum deed. The greatest depth of these two lots is from a northerly to southerly direction, fronting on Lake drive and running to an alley in the rear, the division line between them being approximately 129 feet 9 1/2 inches in length. The appellant's property lies east of the division line, and the appellees' lot west of said line. It will therefore be seen that, by covenants binding upon the parties hereto, there is a strip of land extending from Lake drive to the before-mentioned alley 20 feet wide, 10 feet on either side of said divisional line, which the parties have agreed by said covenants to "leave open and not build" upon, so that said 20 feet of land shall always remain open and not be built upon; this covenant being binding upon the appellant in respect to the 10-foot strip east of said divisional line, and binding upon the appellees in respect to the 10-foot strip west of said line. At the time the appellees purchased their lot from Stein, he was living in a dwelling house located upon that lot. At the time the appellant purchased her lot, there was no building or improvement thereon. On the south line of the appellant's lot, separating it from the alley, there was an iron picket fence. This fence extended along the end of the appellant's restricted 10-foot strip, while along the appellees' south line there were a number of posts fastened with wire, and hedge growing so as to obscure the posts; and this fence or hedge extended along the south end of the appellees' restricted 10-foot strip. It is alleged by the bill and admitted by the answer that the appellees have had certain trenches dug in said strip belonging to them and along the boundary line between the two lots, and have had laid down a foundation and propose to erect on said foundation and along the boundary line between the two lots for a distance of approximately 40 feet from the rear of said lots, and also along the rear of said 10-foot strip at the alley, and across said 10-foot strip at approximately 40 feet from the rear of said lot, a brick fence approximately 3 feet high, brick posts spaced about 8 feet apart, with a paling or lattice fence between said posts; that they contemplate using the rear of said 10-foot strip on their own lot, together with other adjoining parts of said lot, as a service yard for the hanging of clothes while drying, and for other uses usual to a dwelling house and service yard; that the proposed service yard extends only approximately 40 feet from the alley, and does not extend to a point opposite the residence of the appellant. In other words, what the appellees propose to do is to build a fence of the character above mentioned along the southern end of their lot, running in an easterly direction, binding on the alley, to the divisional line, then in a northerly direction with the divisional line for a distance of 40 feet, then in a westerly direction across the restricted strip to the appellees' dwelling. This proposal, if carried out, would inclose in the service yard a portion of the restricted area 10 feet wide and 40 feet long. Their grantor, Stein, covenanted (which covenant is binding upon the appellees) that he, his heirs and assigns, would leave open and not build upon the strip of land 10 feet wide along the entire easternmost side of said remaining portion and adjoining the said 10-foot strip hereinbefore agreed to be similarly left open by the grantee.

The record further discloses that the appellant has utilized the southern part of her restricted 10-foot strip by laying a concrete pavement thereon, used in driving and turning automobiles going in and out of her garage, which is situated on the unrestricted part of her lot. She has also constructed at the south end of the divisional line, on the restricted strip, a brick post approximately 6 feet high and 2 feet square. From this post she has constructed a concrete coping on her side and adjoining the division line over the restricted area...