Ingle v. Stubbins, 747

• Decision Date: 04 June 1954
• Docket Number: No. 747,747
• Parties: INGLE et al. v. STUBBINS.
• Court: North Carolina Supreme Court

Page 388

82 S.E.2d 388

240 N.C. 382

INGLE et al. v. STUBBINS.

No. 747

Supreme Court of North Carolina.

June 4, 1954

W. R. Dalton, Jr., Burlington, for plaintiffs.

Thos. C. Carter, Burlington, Clarence Ross, Graham, for defendant.

WINBORNE, Justice.

Defendant's Appeal.

The sole question presented by the appeal of defendant, as stated in brief of attorneys filed in this Court for him, is whether or not the construction of the residence building on the lot in question nearer than fifty feet to Bueno Street or Wildwood Lane,--a fact agreed,--is in violation of the restrictive covenants here involved. The trial court ruled that it was violation of paragraph four. And this Court now approves.

The subject of restrictive covenants has been recently considered and treated by this Court in opinion by Johnson, J., in the case of Callahan v. Arenson, 239 N.C. 619, 620, 80 S.E.2d 619, 623. There the restrictive covenants are almost parallel in purpose and phraseology to those in the instant case. And they were considered in respect to a proposed plan for partial resubdividing of four lots into smaller units.

It is there said (omitting citations), that 'The applicable rules of interpretation require that the meaning of the contract be gathered from a study and a consideration of all the covenants contained in the instrument and not from detached portions. * * * It is necessary that every essential part of the contract be considered--each in its proper relation to the others--in order to determine the meaning of each part as well as of the whole, and each part must be given effect according to the natural meaning of the words used. * * * Another fundamental rule of construction applicable here requires that each part of the contract must be given effect, if that can be done by fair and reasonable intendment, before one clause may be construed as repugnant to or irreconcilable with another clause. * * * Further, it is to be noted that we adhere to the rule that since these restrictive servitudes are in derogation of the free and unfettered use of land, covenants and agreements imposing them are to be strictly construed against limitations on use. * * * Therefore, restrictive covenants clearly expressed may not be enlarged by implication or extended by construction. They must be given effect and enforced as written. * * * Moreover, the rule is that the mere sale of lots by reference to a recorded map raises no implied covenant as to size or against further subdivision. * * *' For rule as to interpretation, see also Stephens v. Lisk, N.C., 82 S.E.2d 99.

In the light of these rules of interpretation, we turn to the covenants now in hand, and parallel the reasoning and decision reached in the Callahan case.

The covenants that control decision here are contained in paragraphs 2, 4, 5 and 8 of the restrictive covenants.

Paragraph 2 designates the lots as residential lots, and restricts the use of the property to residential purposes, and provides that not more than one detached single family dwelling shall be placed on any residential building plot.

Paragraph 4 establishes the minimum building set back lines, both front and side. And this means the front and side as each existed at the time the covenant was made. See Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763; Tear v. Mosconi, 239 Mich. 242, 214 N.W. 123, 124.

Paragraph 5 fixes the minimum size of the building plot. The minimum requirements as to size are governed by two prescribed standards, one as to width, the other as to total area. The minimum width is 60 feet at the front building set back line. And the minimum area is 10,000 square feet. Therefore a lot 90 feet wide and 170 feet deep, the dimensions of the westerly lot of the re-subdivision of lots 10 and 11, exceeds the minimum standard so fixed as to width and size. But the area of the parts of said westerly lot within the lines of lots 10 and 11 respectively fail to meet the minimum standard of 10,000 feet so fixed. Hence, while the area of the westerly lot is adequate for a single family dwelling unit, it is not sufficient for two, and the erection of two-family dwelling units thereon would be and is in violation of the restrictive covenant in this respect.

Moreover, it is noted that the three lots into which lots 10 and 11, as shown on the original map, were subdivided each contains areas largely in excess of 10,000 square feet, and none of them is less than the minimum width. Therefore, as held in the Callahan v. Arenson case, the covenant fixing minimum standards as to width and area authorizes re-subdivision of the original lots 10 and 11 as made by the Newlands.

Nevertheless there is nothing in the covenants that authorizes the change of original front line in respect to requirements as to building set back distances. Indeed, in Tear v. Mosconi, supra, the Supreme Court of Michigan, in opinion by Clark, J.,...