Jones v. Lanier Development Co.

Decision Date13 April 1939
Docket Number12697.
Citation2 S.E.2d 923,188 Ga. 141
PartiesJONES et al. v. LANIER DEVELOPMENT CO. et al.
CourtGeorgia Supreme Court

Rehearing Denied May 10, 1939.

Syllabus by the Court.

1. Where the owners of lots in a subdivision bring suit to enjoin the erection of a theater building in the subdivision alleging that a general building scheme restricting the property to residential purposes and prohibiting the erection of buildings nearer the property line than fixed distances was established by the developers of the subdivision in order to sell the lots to better advantage, and that the plaintiffs relied on this general building scheme in purchasing their lots, it is error for the judge to refuse an interlocutory injunction where it appears that plats of the subdivision showing a building line applicable to all of the lots of the subdivision were duly recorded, that the defendants' deeds described their property by reference to these plats that some of the deeds in the defendants' chain of title contained express building-line restrictions, and that the defendants' proposed theater building will violate the building-line restrictions shown by the recorded plats and the deeds in their chain of title.

2. A written contract between the owners and developers of the subdivision and their sales agents, authorizing the agents to sell the lots in the subdivision and requiring that all lots be sold subject to building-line and other restrictions, was admissible in evidence for the purpose of showing a general building scheme. The judge erred in rejecting this evidence.

3. Although the defendants in their answer denied any notice actual or constructive, of the restrictions, this denial was completely refuted by evidence that their deeds described their property by reference to recorded plats showing the building line, and that their chain of title contained deeds with express building-line restrictions.

McElreath, Scott, Duckworth & DuVall, of Atlanta, for plaintiffs in error.

Bryan, Middlebrooks & Carter and Tye, Thomson & Tye, all of Atlanta, for defendants in error.

B. W. Jones, Lewis Moseley, H. F. Anderson, M. R. Miles, J. A. Whitehead, and H. R. Neathery, alleging that they were owners of lots and homes in a subdivision originally known as West Section University Park, and later known as Western Section Druid Hills Heights Subdivision, brought suit against Lanier Development Company and Capital Construction Company, seeking to enjoin the defendants from constructing a theater building on lots 2-b, 2-c, and 2-d in block E, as shown by plat of subdivision by G. F. Steele, recorded in plat book 9, page 50-a. It was alleged, that the plaintiffs owned and occupied homes on lots 1, 2, 4, and 6 of Block D and lots 3-a, and 3-b of block E of said subdivision, that the entire subdivision was developed under a general scheme whereby all the property was restricted to residential purposes and certain building lines were fixed and established; that J. T. Turner was the owner of Metropolitan Land Company; that he promoted the development of the subdivision referred to, and in order to sell the lots to better advantage and for better prices he intended to and did establish a general building scheme restricting the property to residential purposes, and prohibiting the construction of buildings nearer the property line than fixed distances as shown by the plat, and petitioners relied upon said general building scheme and purchased their property in the subdivision, believing that the scheme would be carried out; that on June 8, 1920, Metropolitan Land Company, the owner of the subdivision and the common grantor of all the parties to the suit, executed to Buck and Marshall a sales agreement which was recorded in deed book 603, page 254, appointing Buck and Marshall as sales agents for the purpose of selling the lots in the subdivision, and requiring that all lots be sold under the usual restrictions governing said property as follows: 'No residence shall be constructed on any of said lots costing less than $3500. No dwelling shall be placed nearer the street than indicated by the building lines on the original plat.' It was further alleged that the building of the defendants violates the restrictions on the property and will cause irreparable damage to petitioners; that the restrictions referred to are valuable assets to petitioners and their property, and the property of defendants is charged with a servitude in favor of petitioners' property, as per restrictions; that the restrictions are valuable in that they enhance the value of petitioners' properties for residence purposes, and the conversion of the defendants' property into business property will lessen the value of petitioners' property and will render it undesirable for residential purposes; that the restrictions are covenants running with the land, and petitioners are entitled to relief against the violation of such restrictions, to wit, 'the building of business property in violation of said restrictions, and in building nearer the street than permitted by said restrictions;' and that the petitioners are without an adequate remedy at law, and unless equity enjoins the violation of such restrictions the theater building will be erected, and petitioners will be without remedy to remove the same.

The defendants answered, admitting the allegations of the petition that they were residents of the county, that the subdivision in question was platted, that the plats of the subdivision referred to by the plaintiffs were of record as alleged, that the defendants owned the property as alleged, and intended to and had actually begun construction of a theater building on the property, and that their deeds to the property

described the same by referring to the plat of University Park by G. F. Steele recorded in book 9, page 50-a. For want of information, they neither admitted nor denied that the plaintiffs owned the properties claimed. They neither admitted nor denied the allegations with reference to the sales-agents contract referred to in the petition, and neither admitted nor denied the allegation that plaintiffs' deeds to their respective lots contained the restrictions. The answer denied the other allegations of the petition.

At the interlocutory hearing the plaintiffs introduced as evidence their verified petition and amendment; two plats of the subdivision referred to, both of which showed a building line applicable to all properties in the subdivision; a sketch of the theater building which the defendants were constructing, this sketch showing that the building at one point was within five feet of the property line and that at the farthest point it was fourteen feet. Also introduced were a number of deeds conveying various lots in the subdivision and containing restrictive clauses prohibiting the construction of buildings closer than from ten to thirty feet of the property line, among which was a deed from Metropolitan Land Company to W. B. Gardner, dated October 18, 1922, duly recorded, conveying lots 2-c and 2-d, block E, as per plat by G. F. Steele, recorded in plat book 9, page 50-a, and providing that no building shall be erected nearer the property line on University Drive than fifteen feet, which are two of the four lots owned by the defendants and involved in this case. The defendants introduced a list of conveyances (which by agreement was accepted in lieu of the deeds themselves), showing a...

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37 cases
  • Cox v. Zucker
    • United States
    • Georgia Supreme Court
    • March 7, 1958 use the driveway for the purpose complained of in this case. 3. Ground 3 obviously misconstrues the decisions in Jones v. Lanier Development Co., 188 Ga. 141, 2 S.E.2d 923, and Everett v. Tabor, 119 Ga. 128, 46 S.E. 72. Those decisions plainly and unmistakably hold that the trial judge o......
  • Sirota v. Kay Homes, Inc.
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    ...evidence is conflicting, his discretion will not be controlled, unless it is apparent that he has abused it. Jones v. Lanier Development Co., 188 Ga. 141, 145(1), 2 S.E.2d 923, and cit. But the rule that the Supreme Court will not interfere with the discretion of the trial judge in granting......
  • Slautterback v. Intech Management Services
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    ...discretion to preserve the right by preserving the status.' Everett v. Tabor, 119 Ga. 128, 130, 46 S.E. 72. See Jones v. Lanier Development Co., 188 Ga. 141, 145, 2 S.E.2d 923; Ballard v. Waites, 194 Ga. 427, 429(3), 21 S.E.2d 848; and Maddox v. Willis, 205 Ga. 596(5), 54 S.E.2d 632, where ......
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    • February 27, 2012 interlocutory injunction to restrain the defendant.(Citations and punctuation omitted; emphasis supplied.) Jones v. Lanier Dev. Co., 188 Ga. 141, 145–146, 2 S.E.2d 923 (1939). Although the dissent takes great care in contrasting and distinguishing the claims in the Virginia complaint fro......
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1 books & journal articles
  • Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 28-1, August 2022
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    ...v. Todd's Constr. Co., 227 Ga. 836, 183 S.E.2d 354 (1971); Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848 (1942); Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 943 (1939). [28] See, e.g., Bernocchi v. Forcucci, 279 Ga. 460, 461, 614 S.E.2d 775, 777 (2005). [29] See, e.g., Burnham v. State ......

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