Johnson v. Mt. Baker Park Presbyterian Church

• Decision Date: 20 December 1920
• Docket Number: 16132.
• Citation: 113 Wash. 458,194 P. 536
• Court: Washington Supreme Court
• Parties: JOHNSON et al. v. MT. BAKER PARK PRESBYTERIAN CHURCH.

194 P. 536

113 Wash. 458

JOHNSON et al. v. MT. BAKER PARK PRESBYTERIAN CHURCH.

No. 16132.

Supreme Court of Washington

December 20, 1920

Department 1.

Appeal from Superior Court, King County; John B. Davidson, Judge.

Action by George W. Johnson and others against the Mt. Baker Park Presbyterian Church. Judgment for plaintiffs, and defendant appeals. Affirmed.

Preston, Thorgrimson & Turner, of Seattle, for appellant.

Reynolds Ballinger & Hutson, of Seattle, for respondents.

BRIDGES J.

The purpose of this action by the respondents was to enjoin the appellant from erecting a church on lot 7, block 27, Mt Baker Park addition to the city of Seattle, Wash. The facts are not greatly in dispute. We find them to be as follows The Hunter Tract Improvement Company many years ago became the owner of a tract of land containing about 200 acres. In 1907 it platted this land into lots, blocks, streets avenues, and alleys as 'Mt. Baker Park, an addition to the city of Seattle.' There were originally about 800 lots. At the time of platting the improvement company determined to make the addition a strictly high-class residence section and that it would not permit any buildings other than residences, and that there would be embodied in the deeds to all lots sold a restriction clause for the purpose of carrying out this plan. To this end it procured special printed blank forms of deeds to be made, in which the following clause was embodied:

'This sale is made subject to the following restrictions: Nothing but a single, detached residence, costing not less than _____ thousand dollars ($_____), shall be built on any one lot described in this deed, and when built it shall be used for residence purposes only. No old buildings shall be moved thereupon. No building shall be nearer than _____ feet from the street line of said lot upon which said building faces. If the grantee or any one claiming under the grantee shall violate any of the aforesaid restrictions, the title to the land hereby conveyed shall forthwith, without notice and without entry, revert to and rest in the grantor.'

At all times the improvement company made public, by advertisements, oral statements and otherwise its determination to make this subdivision a strictly residence section.

In 1910 the respondents Johnson and wife purchased from the improvement company lot 3 in block 28 of the addition, and the deed which they received contained the abovementioned restriction clause. In 1909 the improvement company sold lot 4 in block 28 to one O'Melviney, and the latter conveyed the lot to the present plaintiffs Hamilton and wife, and each of these deeds contained the usual restrictions. In 1919 the improvement company sold lot 7, block 27, of the addition to the appellant. Its deed did not contain any restriction clause. Before the sale to the appellant the improvement company had sold and deeded to various persons about 650 of the 800 lots, and all such deeds, with the exception of four or five hereafter to be mentioned, contained the usual restriction clause. All persons buying lots were told, and understood from the beginning, that the addition was to be used exclusively for residence purposes, and at the time the respondents purchased their lots they were informed by the improvement company that the whole addition was restricted, and that restriction clauses similar to those put in their deeds would be embodied in all other deeds. Like information was generally given to any one who purchased. People purchased lots in this addition for no other reason than that it was represented and they understood that the whole property was to be devoted to residence purposes only. Because of such restrictions the lots were sold at from 15 to 20 per cent. more than they would have sold for had the district not been restricted.

The appellant bought its lot with knowledge of all, or substantially all, of the controlling facts. It had knowledge that at all times there had been a concerted action for the purpose of making the addition a strictly private residence one, and that deeds issued by the improvement company to purchasers contained the restriction clause above mentioned. In fact, at the time of the purchase by appellant and as a part of that transaction it entered into a written agreement with the improvement company which recited that:

'Whereas, heretofore the party of the first part [the improvement company] has conveyed lots in said addition and by deeds and instruments of conveyance has provided that nothing but a single, detached dwelling, costing a specified amount, shall be erected upon said lots so conveyed: Now, therefore, in consideration of the premises, the party of the second part [appellant] hereby agrees to indemnify and save harmless the party of the first part from any and all costs or damages which may accrue to the party of the first part by reason of any claim which may be asserted or action which may be commenced against the party of the first part on account of the failure of the party of the first part to include in said deed to the party of the second part any building restrictions. * * * Furthermore, the party of the second part hereby agrees that, in the event of it ever selling the above-described lot prior to the erection of a church thereon, it will embody building restrictions in the conveyance which will prohibit the erection of any kind of building upon said lot except a single, detached dwelling, which shall cost at least five thousand dollars ($5,000), and set back twenty-five (25) feet from Thirty-Fourth Avenue South.'

The appellant intends to build a church on its lot, unless prevented by the courts. The lower court enjoined it from constructing any church upon this lot, and from that judgment it has appealed.

The several reasons advanced for the reversal of the judgment have been ably briefed and argued by the parties. It seems to be appellant's contention that respondents cannot have any legal ground for seeking to enjoin the erection of the church unless they can show some right, title, interest, or easement in the so-called church lot, and that the only testimony tending to show such interest or easement is in the oral promises of the improvement company to purchasers that it would incorporate the usual restriction clause in all deeds made by it, and that the whole addition would be restricted to residences only, and that, since such interest or easement cannot thus be legally created, respondents could not have maintained a similar action against the improvement company; consequently they cannot maintain this action against appellant. In other words, it contends that the cause of action, if any, of the respondents, is defeated by the statute of frauds, which reads as follows:

'All conveyances of real estate or any interest therein, and all contracts creating or evidencing any incumbrance upon real estate shall be by deed.' Section 8745, Rem. Code.

Appellant cites the following cases, among others, in support of its position: Sprague v. Kimball, 213 Mass. 380, 100 N.E. 622, 45 L. R. A. (N. S.) 962, Ann. Cas. 1914A, 431; Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. 195; Newton v. City of Dunkirk, 121 A.D. 296, 106 N.Y.S. 125; Werner v. Graham (Cal.) 183 P. 945; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; McCusker v. Goode, 185 Mass. 607, 71 N.E. 76. To this list may be added the recent case of Ham v. Massasoit Real Estate Co. (R. I.) 107 A. 205, 5 A. L. R. 440.

On the other hand, respondents base their right of action upon the doctrine of equitable estoppel, and, among others, cite the following cases in support of their contention: Tallmadge v. East River Bank, 29 N.Y. 105; Allen v. Detroit, 167 Mich. 464, 133 N.W. 317, 36 L. R. A. (N. S.) 890; Knapp v. Hall (Sup.) 20 N.Y.S. 42; Duester v. Alvin, 74 Or. 544, 145 P. 660; Bimson v. Bultman, 3 A.D. 198, 38 N.Y.S. 209; Lowrance v. Woods, 54 Tex.Civ.App. 233, 118 S.W. 551; Bridgewater v. Ocean City R. Co., 62 N. J. Eq. 276, 49 A. 801; Scott v. Roman Catholic Archbishop, 83 Or. 97, 163 P. 88. To which might be added the following cases: Hisey v. Eastminster Pres. Ch., 130 Mo.App. 566, 109 S.W. 60; Stott v. Avery, 156 Mich. 674, 121 N.W. 825; Bostwick v. Leach, 3 Day (Conn.) 476.

We have here, then, a case involving the following outstanding facts: The Improvement company platted this land and put it on the market with the intention of limiting the use of the various lots to residences only. This intention has been in all respects made public and known to each purchaser, and has been systematically carried out. Conforming to this scheme, some years ago it sold lots to the plaintiffs, and its deeds of conveyance contained building restriction clauses. When more than three-fourths of the lots had been conveyed by similar deeds, it conveyed to appellant the lot in question, by deed which did not contain any use restriction, but appellant at the time of purchase had complete notice of the restricted use plan.

The statute of frauds cannot be involved except where the question of interest or easement in land is involved. We think it must be conceded that in this case the respondents have no interest or easement in appellant's land in the sense of the statute of frauds. There is certainly nothing in the case to show any writing creating such interest or easement, nor is there anything which might be construed as creating or attempting to create such interest or easement, other than the testimony to the effect that, when it made its deeds to respondents, the improvement company represented to them that restriction clauses would be placed in all deeds made by it. But this, being only an oral promise, would be wholly unenforceable as an attempt to create an interest or easement in appellant's land.

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