Hunter Tract Imp. Co. v. Corporation of Catholic Bishop of Nisqually

• Decision Date: 29 August 1917
• Docket Number: 14063.
• Court: Washington Supreme Court
• Parties: HUNTER TRACT IMPROVEMENT CO. et al. v. CORPORATION OF CATHOLIC BISHOP OF NISQUALLY et al.

167 P. 100

98 Wash. 112

HUNTER TRACT IMPROVEMENT CO. et al. v. CORPORATION OF CATHOLIC BISHOP OF NISQUALLY et al.

No. 14063.

Supreme Court of Washington, En Banc.

August 29, 1917

Appeal from Superior Court, King County; W. H. French, Judge.

Action by the Hunter Tract Improvement Company and others against the Corporation of the Catholic Bishop of Nisqually and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Ellis C.J., and Main and Webster, JJ., dissenting.

Reynolds & Harroun, of Seattle, for appellants.

Farrell Kane & Stratton, of Seattle, for respondents.

MORRIS J.

Action to enforce a restrictive clause in a deed, reading that:

'Nothing but a single detached residence * * * shall be built on any one lot described in this deed and when so built shall be used for residence purposes only.'

For some time past the property in suit has been occupied by a Catholic sisterhood, referred to in the record as the 'Ursulines.' The question at issue is, Is the property occupied for other than residence purposes only? Judgment of dismissal below and appeal.

The first error assigned is in the striking of testimony in behalf of appellant that the premises in question were used as a convent, upon the ground that the answer stated a conclusion. While in a sense the question called for the conclusion of the witness, it was not in this sense improper. A witness may testify to the character of a building, as, for instance, it is a church, a garage, or a school, when, as here, the issue to be determined is the manner of use of the building. The answer should be given such weight as the knowledge of the witness concerning the facts upon which he bases his answer entitles it to receive. We therefore accept the answer, and, as this is a trial de novo, proceed to the second question raised, that the evidence sustained the complaint, and the dismissal of the action was error.

The facts relied upon by appellant are these: The building upon the premises was built for use as a family residence, and subsequently conveyed to respondents. Respondents have made no change in the outward appearance of the house, and there is nothing in its appearance to indicate it is other than a family residence. Living in the house are some 12 or 15 women belonging to the Catholic order known as the Ursulines. These women are clothed in a dark habit similar to that used by other Catholic sisterhoods. They go out walking in groups of from 2 to 12. In what was originally the living room of the house a small altar has been erected. A priest comes every morning between 6 and 7 o'clock and holds religious services. Chanting and singing have been heard and the ringing of small bells. On two or three occasions a number of children have visited the home on Sunday afternoon. Shortly after their first occupancy one of the neighboring residents was asked if objection would be made to placing a small cross upon the house. Being informed that this would be objectionable, nothing further was done. In the city telephone directory the telephone number is given under the name 'Ursuline Convent.' Young women have been admitted in the sisterhood at the home, at which time the following invitation and notice was sent out:

'The Ursulines of Seattle, Washington, request the honor of your presence at the 'Clothing' of their First Novices In the Convent Chapel 2745 Mt. St. Helens Place on Friday afternoon, August thirteenth nineteen fifteen, at four o'clock Right Reverend Edward J. O'Dea, DD., Bishop of Seattle, will officiate'The Ursuline Chapel is very small. The friends who kindly accept the invitation are requested graciously to overlook the consequent inconvenience.'

In Jones v. Williams, 56 Wash. 588, 106 P. 166, it was held that restrictive words in a deed are to be construed strictly against the grantor and those claiming the restriction against the premises, and will not be extended beyond the clear meaning of the language used. The restriction here is 'residence purposes only.' These words are of simple and ordinary meaning, and if any construction is needed, it cannot be more than to say the house upon the premises shall be used for no other purpose than as a residence or dwelling. It does not seem to us that the above facts show that this residence is used for other purposes. It is immaterial what name is given to the women who live in this house or to the house itself, either by the telephone directory or by themselves. The restriction is not against names, but purposes. The house must be used for some other purpose than a residence. The fact that religious services are held in the house every morning by a priest, or that a small altar has been erected, does not take away from these premises their character as the home or residence of the women who live there. We may take notice of the fact that religious services are held in many residences, that singing or chanting of a religious nature may be heard in family homes, and that to those who are religiously inclined the courts would hardly say:

'If you have a clergyman of your religious faith visit your home every morning and hold services with you your home loses its character as a place of residence and becomes a religious institution.'

Neither can it be said that, because young children have been received on a Sunday afternoon, this shows the character of the home to be other than that of a residence. Neither does the garb or number of the inhabitants make these premises other than a residence.

The strongest argument in support of appellants' contention is in the invitation to the 'clothing of their first novices.' If these premises are habitually used for the training of young women who seek admission into the sisterhood, it might be said that the premises have lost their character as a residence 'only' and taken on that of an institution. But such is not the record. We know nothing of the fact other than that on the occasion referred to and...