Jernigan v. Capps

• Decision Date: 12 January 1947
• Citation: 45 S.E.2d 886
• Parties: JERNIGAN. v. CAPPS et al.
• Court: Virginia Supreme Court

45 S.E.2d 886

JERNIGAN.

v.CAPPS et al.

Supreme Court of Appeals of Virginia.

Jan. 12, 1947.

Rehearing Denied March 5, 1948.

STAPLES, J., HUDGINS, C. J., and GREGORY, J., dissenting.

Appeal from Circuit Court of City of Norfolk; Clyde H. Jacob, Judge,

Bill in equity by A. B. Capps, Jr., and others, against A. S. Jernigan to restrain defendant from erecting a one-story four-family apartment building on land defendant had contracted to purchase. From decree enjoining erection of building, defendant appeals.

Reversed and final decree dissolving the injunction and dismissing bill of complaint entered.

Before HUDGTNS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Eastwood D. Herbert of Norfolk, for appellant.

Vivian L. Page and Walter Aubrey Page, both of Norfolk, for appellees.

EGGLESTON, Justice.

The appellees, who were the complainants in the court below, filed their bill in equity against A. S. Jernigan, the appellant, to restrain him from erecting on a lot of land which he had contracted to purchase, a one-story four-family apartment building. The bill alleged that such building was in violation of certain restrictive covenants in a deed or deeds in the defendant's chain of title. The lower court granted the prayer of the bill and enjoined the erection of the proposed building. Hence this appeal.

The matter is before us on an agreed statement of facts which will be briefly summarized, the parties being sometimes referred to according to the positions occupied by them, respectively, in the lower court.

The defendant (Jernigan) had contracted to purchase lot number 54, in section 2, in a development known as "Cromwell Place, " which is located in a residential area of the city of Norfolk. The lot extends 90 feet along Sir Oliver road and 140 feet along Granby street.

The complainants, Capps and others, are owners in fee simple of other lots in the same subdivision. All of the lots in the subdivision were conveyed subject to certain covenants and restrictions which are copied in the margin.¹

In the defendant's chain of title there is an additional covenant or restriction notcommon to the other lots in the subdivision, that "the use of the land shall be restricted to residential purposes, and that the same shall not be used as a parking lot, nor for the purpose of parking automobiles, * * *."

The covenants or restrictions with which we are particularly concerned are those that "only one residential building * * * shall be erected on any lot" in the subdivision, and that "the use of the land shall be restricted to residential purposes, * * *."

In the subdivision ninety houses, each designed to accommodate a single family, and two duplex houses, each designed to accommodate two families, have been erected.

The area, however, in which the subdivision lies had been zoned by the city council as a "Residence B" district, in which the erection of apartment houses was permitted. In accordance with such classification, Jernigan had been granted a permit by the proper city official to erect on his lot the proposed building. There is no evidence that the building, or any part thereof, is to be used for business purposes.

According to the exhibits, the design of the exterior of the proposed building is quite similar to that of the other residences, including the duplex houses, which have been erected in the subdivision.

During the laying of the foundation for the Jernigan building the present suit was instituted. While the bill alleged that the structure would violate certain restrictions fixing the building lines applicable to the lot, there was no evidence to support this allegation, and hence we are not concerned with it.

As indicated by its decree, the lower court was of opinion that the defendant was constructing on the lot "a type of building" which violated the covenants and restrictions mentioned. Consequently, it perpetually enjoined him from "erecting or building the proposed four-family apartment or multiple family residence or any other structure than a one-family residence" upon the lot.

The precise question presented to us is whether the erection of this building, designed to house four families, violates the covenants or restrictions that "only one residential building * * * shall be erected on any lot, " or that "the use of the land shall be restricted to residential purposes."

The appellees (the complainants below) argue, and the trial court seems to have held, that when the particular words are read in their setting, along with the other restrictions, they show a purpose of the draftsman to establish and maintain in the area a high-class residential district, limited to the erection of buildings each designed for the accommodation of a single family, and for the exclusion of apartment houses and multiple residence buildings.

On the other hand, the appellant (Jernigan) argues that restrictions of this character should be strictly construed and not extended by implication; that neither apartment houses nor multiple family residences are excluded by express language; that the purpose of the particular language used, restricting the erection of "only one residential building" to a single lot, was to confine the use of the land and buildings thereon to residential purposes, as distinguished from commercial or business purposes; and that it was not intended thereby to exclude the proposed building, which, he says, is "a residential building, " and is to be used for "residential purposes."

Although there are a multitude of cases dealing with restrictions of this character, we have been pointed to none, nor have we been able to find any, limiting the structure to be erected on a single lot to "only one residential building, " the precise words used here. However, the general principles to be applied in interpreting such covenants and restrictions are firmly fixed both in this jurisdiction and elsewhere.

In the recent case of Schwarzs-child v. Welborne, 186 Va. 1052, 45 S.E.2d 152, this court, through Mr. Justice Buchanan, reviewed the authorities and restated the principles applicable to suchcases. We there said, 186 Va., at page 1058, 45 S.E.Zd at page 155:

" * * * while courts of equity will enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable, they are not favored, and the burden is on him who would enforce such covenants to establish that the activity objected to is within their terms. They are to be construed most strictly against the grantor and persons seeking to enforce them, and substantial doubt or ambiguity is to be resolved in favor of the free use of property and against restrictions. (Citing authorities.)

"Of course 'a thing may be forbidden by necessary implication as clearly and positively as by terms of express inhibition, ' and 'if it is apparent upon the whole that the instrument carries by definite and necessary implication a certain meaning, then the thing afforded, or denied, by that meaning may be said to be as clearly and definitely extended, or forbidden, as if the language used had been in positive and definite terms of affirmation or negation.' White-hurst v. Burgess, 130 Va. 572, 107 S.E. 630, 631."

In the Schwarzschild case we held that the covenant or restriction that "there shall not be erected more than two (2) dwellings" on a single lot, and that the improvements thereon "shall be a dwelling or two dwellings, " did not either in express terms or by necessary implication inhibit the owner of the property from renting rooms in the building for permanent occupancy, since, we said, such building, under the circumstances stated, was the "dwelling" of the tenants or roomers.

It is an elementary rule of construction that the purpose or intent of a written instrument must be determined from the language used in the light of the circumstances under which it was written. In the case now before us the restrictions do not in express terms forbid the erection of "an apartment house" or "a multiple family residence." Nor do they limit the type of a permitted building to "a single family dwelling, " "a single family residence, " "a single family house, " "a single detached dwelling." None of these or other expressions of like clear import are used.

These restrictions, the record shows, became applicable to the lots in this subdivision in 1929, when apartment houses and multiple family residences were in common use in the city of Norfolk and elsewhere. In subdivisions designed by promoters as highly restricted residential districts, apartment houses are excluded in clear and express terms by restrictive covenants in deeds in the chain of title. For instance, in Elterich v. Leicht Real Estate Co., 130 Va. 224, 227, 107 S.E. 735, 736, 18 A.L.R. 441, decided January, 1921, the restriction in a subdivision, likewise located in the city of Norfolk, was that "no flat roofed or double house, * * * or apartment house shall be erected or placed upon the property hereby conveyed." (Italics supplied.)

By like clear language apartment houses were excluded from certain areas by zoning laws. Thus the Norfolk city zoning ordinance, adopted August 19, 1924, uses the phrase "a single detached dwelling" in defining the permitted uses applicable to highly restricted residential districts.

Neither do we think that the language in the restrictions before us, that "only one residential building * * * shall be erected on any lot" in the subdivision, prohibits by necessary implication the erection of the proposed building.

The restriction has a two-fold purpose: (1) To inhibit the erection of more than a single building on a single lot; and (2) to confine the type of the structure and its use ² to that of "a residential building."

Plainly, the proposed structure conforms to the first-stated purpose, for a single building is to be erected on a single lot. The only question to be determined, then, is whether the proposed structure is "a...