Hull v. Bullard
| Decision Date | 08 July 1969 |
| Docket Number | No. 42070,42070 |
| Citation | 456 P.2d 516 |
| Parties | Leroy HULL and Doris June Hull, Plaintiffs in Error, v. C. F. BULLARD et al., Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The language 'All lots and land in this addition shall never be used for any commercial business, profession, or any other purpose other than residential use' and 'all lots and land in this addition must be used for private residential dwelling exclusively,' in the plat restrictions of an addition to a City, is clear and explicit in excluding the use of the lots for any other purpose than residential, where there is no provision in the restrictions modifying or qualifying such language.
2. In order to be sufficient to warrant the release of property from the servitude of a restrictive covenant, the evidence of a change of conditions must establish that the original purpose and intent of the restrictions have been altered or destroyed by the changed conditions and cannot be accomplished by the enforcement of said restrictions.
Appeal from the District Court of Oklahoma County; Clarence Mills, Judge.
Appeal by defendants from a judgment enjoining them from operating a beauty parlor or salon on a lot in an addition in violation of the plat restrictions. Affirmed.
Wm. R. Saied, Saied & Porter, Oklahoma City, Marian P. Opala, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for plaintiffs in error.
Hal Whitten, Whitten & Whitten, Oklahoma City, for defendants in error.
Leroy Hull and Doris June Hull (defendants below) appeal from a judgment in favor of C. F. Bullard, et al. (plaintiffs below) whereby the Hulls were enjoined from using Lot 1, Block 8, Sec. 2, Bush Hills Sixth Addition to Oklahoma City, Oklahoma, for any purpose other than for residential use, and more especially from conducting a beauty parlor or salon upon the property. The parties will be referred to by their trial court designation.
The numerous plaintiffs were owners of various lots in the above residential addition and brought this action to ehjoin the defendants from operating a beauty parlor in a residence located upon the above described lot. Plaintiffs alleged the operation of a beauty parlor was in violation of the plat restrictions. Defendants' answer admitted they were the owners of the property and that they operated a beauty parlor therein; that they did not willfully violate the restrictions; that they had expended a large sum of money in buying the lot and constructing the building thereon; and that the violation of the restrictions was slight, and the cost of removal was so great as to make removal unconscionable.
There appears to be no dispute as to most of the facts. The plat of the addition and the protective covenants (restrictions) were filed of record August 21, 1959. It was stipulated that the restrictions could be considered in evidence for all purposes. The pertinent paragraphs of the restrictions are as follows:
Defendants bought their lot in March, 1965. It appears the lot is located on the southwest corner of Northwest 50th Street and Utah Avenue and that 50th Street is the north line of the addition. In addition to the notice furnished by the recorded restrictions, the defendant Leroy Hull and the contractor who secured the house building permit and constructed the house on the lot for the defendants, had personal knowledge of the restrictions regarding use of the premises. The house is of similar construction and conforms in appearance with those in the area. Leroy Hull testified that from the start of construction the plan was to put a beauty parlor in what would ordinarily have been an attached two car garage. In building the house, the exterior thereof in the garage area was made to appear as an attached two car garage, with a drive off of Utah Avenue and two overhead garage doors. A large part of the back yard was made into a parking area, with curb and crushed white rock. This area was reached by a driveway from 50th Street. The interior of the garage area was finished as a beauty parlor, complete with three operators' chairs, dryers, mirror and appropriate furnishings and equipment. Entrance to the shop was by means of a door on the north side, and at the side of this door was a one foot by two foot sign, bearing the name of the establishment. Leroy Hull testified the expense of making the garage area into a beauty salon, with carpeting and equipment, and of the parking area, was between $4000 and $5000. The work in the shop was performed by defendant's two daughters and their mother. There was a conflict in the evidence as to whether a traffic problem was created by operation of the shop. Plaintiffs said the cars parked in Utah Avenue hindered traffic. Defendants testified the cars were parked in the rear with a few exceptions.
Plaintiffs' testimony was that there were no other businesses or professions being conducted in the addition. Defendants testified that a retired minister, who lived next door, did sell from his home a book that he had authored or compiled, but that the book was not printed there and there was no outside sign on the house. There was testimony that 50th Street had been made into a four lane street and that the speed limit had been increased from 30 to 40 miles per hour since defendants bought their property. The testimony shows that to the north, across 50th Street and in another addition, is...
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Crimmins v. Simonds
...of the restriction to the point of defeating its purpose, or of such a nature that it renders the covenant valueless. Hull v. Bullard, Okl., 456 P.2d 516 (1969); Albino v. Pacific First Federal Savings & Loan Ass'n, 257 Or. 473, 479 P.2d 760 (1971); Metropolitan Investment Co. v. Sine, Defe......