HOOVER v. WAGGOMAN

• Decision Date: 24 November 1948
• Docket Number: No. 5095,5095
• Citation: 199 P.2d 991,52 N.M. 371
• Parties: HOOVER v. WAGGOMAN.
• Court: New Mexico Supreme Court

52 N.M. 371

199 P.2d 991

HOOVER

v.WAGGOMAN.

No. 5095.

Supreme Court of New Mexico.

Nov. 24, 1948.

[199 P.2d 991, 52 N.M. 372]

Iden & Johnson and James Paulantis, all of Alburquerque, for appellant.

W. A. Keleher and A. H. McLeod, both of Alburquerque, for appellee.

BRICE, Chief Justice.

The question is whether certain restrictive covenants contained in a deed conveying city lots, restrict the use of the land so that the grantee is precluded from its use for parking automobiles.

This action was brought by plaintiff (appellee) to enjoin the defendant from paving and using lots 1 and 2 of Block 55 of the University Heights addition to the City of Alburquerque for storing automobiles.

The material facts found by the court and its conclusions of law are in substance as follows:

'That the provisions of the deed from the subdivider and owner, conveying Lots 1 and 2 in Block 55 of the University Heights Addition, as well as the provisions in all other deeds conveying property in said addition (except the small portion designated for business), read as follows:

"The said party of the second part in consideration of the premises and of the sum of One Dollar to her in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, for herself and her heirs and assigns, herebycovenants and agrees with the said party of the first part, its successors and assigns,that the said party of the second part, her heirs or assigns, shall not erect upon said premises or permit or suffer to be erected or placed upon said premises any tent house and no building other than dwelling houses and such barns, garages or outhouses as may be necessary in connection with the use of said premises for dwelling purposes nor more than one dwelling house to be erected on any one lot. Nor shall any building of less than restricted value on the rear of the lot be used for dwelling purposes longer than four months from the date of construction, and all adobe buildings must be cement finished on the exterior within six months after construction, and no dwelling house and accompanying barns, garages, outhouses or porches thereon be placed nearer than 25 feet to the front line of the lot, and no dwelling house and accompanying barns and outbuildings shall be of less value than $4,100, nor shall any of such lots be subdivided or buildings fronted on side streets, nor shall any open or dry toilets be permitted on said premises, nor shall any solid board fences be constructed on the lots, nor shall any building erected on said lots be used as a store or sanitarium (sanitarium being defined as any place harboring three or more people afflicted with tuberculosis) or for any other purpose than as private dwelling places. It is understood and agreed that said covenants on the part of the grantees herein shall attach to and run with the land hereby conveyed, and the party of the first part or any owner of a lot in said Addition shall have the right to enforce compliance with said covenants by injunction or other legal proceedings, and in case the said party of the second part, her heirs or assigns shall persist in the violation of said covenants after notice to desist, the title hereby granted shall revert to and revest in the said party of the first part or its successors or assigns, shall be entitled to the immediate possession of said premises.'

'That the plaintiff is the owner of Lot 22 of Block 50 of the University Heights Addition to the City of Alburquerque, New Mexico, and that such lot is used by the plaintiff as a residence for himself and family.

'That the defendant has recently built a business block or unit on all or part of Block 56 of the University Heights Addition to the City of Alburquerque, New Mexico, and that such business unit contains a total of twenty-nine separate store units which are rented or are offered for rent for the conducting of different kinds of business.

'That the defendant is the owner of Lots 1 and 2 of Block 55 of the University Heights Addition to the City of Albuquerque, New Mexico, and that defendant intended to use such lots for parkingpurposes for the tenants and their employees who will have store space in the business unit above referred to.

'That the defendant had graded said Lots 1 and 2 of Block 55 and intended to place an asphalt top of two inches on such property, and when paved defendant intended to have such lots used for parking in connection with the business unit above referred to.

'That it was the intent and purpose of the subdividers and owners of all the property which was platted as the University Heights Addition, that it was to be a restricted residential district, restricting the use of said property for private dwellings or residential purposes, excepting a certain small area that was designated in the Addition for business. The area designated for business does not cover Lots 1 and 2 of Block 55. The business designated district is very small as compared with the large portion of the district designated for private residences or dwellings. The whole general intent and purpose of the owners and subdividers of the district to restrict the property to private residences or dwellings would be thwarted, and the purchasers of the property who relied upon said restrictions to maintain homes in a restricted residential district would also be thwarted if the real estate could be used for business purposes or any other purposes except for private dwellings, regardless of whether the lots had actual buildings uponthem, or not; that is, regardless of whether the buildings on the lost were used for other than residential purposes or merely whether the lots were used for purposes other than private residences.

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'That the intent and purpose of the subdividers at the time the University Heights Addition was platted was to confine such property to private dwelling places, except for an area that was designated for business. Such area designated for business, however, does not cover Lots 1 and 2 of Block 55.'

The trial court concluded that the building restrictions contained in the chain of title to Lots 1 and 2 of Block 55 of the University Heights Addition prohibits the use of such lots for any purpose other than private dwelling places, and particularly for the use of such property for parking automobiles.

The trial court entered a decree accordingly, perpetually enjoining the defendant from using, or attempting to use, the lots in question 'as a parking lot, either for the customers that might trade at the business unit on Block 56 of said addition, or as a parking lot for the tenants in such business unit, or as a parking lot for the tenants' employees, or for any other purpose than as a place for private dwellingplaces and the defendant is perpetually enjoined from paving such property for use as a parking lot.'

It is asserted that the restrictions imposed upon the lots in question relate only to buildings that may be erected thereon, but do not restrict the use of the land itself.

The part of the restrictive covenant here involved is in effect that 'no building other than dwelling houses, and such barns, garages or outhouses as may be necessary in connection with the use of said premises for dwelling purposes, nor more than one dwelling house to be erected on any one lot * * * nor shall any buildings erected on said lots * * * be used for any other purpose than as private dwelling places.'

It will be observed that no specific restriction is included in the covenant that applies to the land alone. As we understand the contention of defendant, it is that under the rule of strict construction which applies in such cases, the owner may use the land itself, before or after the construction of a dwelling house thereon, for any purpose, business or other purpose, for which it might have been used if such covenants were absent; provided the use shall not require the erection of buildings thereon. In other words, that there are no restrictions that preclude the use of the land for any 'open air' business.

This contention is supported by numerous authorities, of which the defendant cites the following: Granger v. Boulls, 21 Wash.2d 597, 152 P.2d 325, 155 A.L.R. 523; Jenney v. Hynes, 282 Mass. 182, 184 N.E. 444; Id., 285 Mass. 332, 189 N.E. 102; Shaddock v. Walters, Sup., 55 N.Y.S.2d 635; Cooke v. Kinkead, 179 Okl. 147, 64 P.2d 682; Himmel v. Hendler, 161 Md. 181, 155 A. 316. The deed involved in the Granger case had substantially the same restrictions as in the case here considered. It was held that such restrictions applied only to buildings, and did not prevent the owner of the land from using it for grazing or keeping cattel, pigs, chickens, and rabbits thereon. The Washington court said [21 Wash.2d 597, 152 P.2d 326];

'The appellants contend that, since the court dismissed the private nuisance action, from which respondents did not appeal, it was error to restrain the appellants from pasturing or using the land to support any cattle, pigs, chickens, or rabbits in so far as it could be done without the use of a barn, chicken house, pig sty, or rabbitry on the premises covered by the covenant. The language of the covenant prohibits the erection of buildings to be used for any purpose other than as a private dwelling, but permits the erection of necessary out-buildings for residence uses.

* * *

'Covenants, such as the one at bar, are very common. By their use, people accomplishthe exclusion from the neighborhood of their residence, of the unpleasant and unattractive activities which however indispensable in the world are nevertheless capable of segregation without hardship or inconvenience. Undoubtedly, thecovenants in the instant case were for the purpose of segregating the land into a private residental destrict. That it failed to restrict the use of the land itself for farming is clear, but is equally clear that it did prohibit the erection of farm buildings as distinguished from private...