Jones v. Williams

• Decision Date: 08 January 1910
• Citation: 106 P. 166,56 Wash. 588
• Parties: JONES et ux. v. WILLIAMS.
• Court: Washington Supreme Court

106 P. 166

56 Wash. 588

JONES et ux. v. WILLIAMS.

Supreme Court of Washington

January 8, 1910

Department 2. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Action by William G. Jones and wife against Bert R. Williams. Demurrers to the complaint were overruled, and, defendant electing to stand thereon, judgment was rendered against him and he appeals. Reversed and remanded, with instructions to sustain the demurrers.

Howard Waterman, for appellant.

Chauncey L. Baxter and John R. Wilson, for respondents.

PARKER J.

This cause comes to this court upon the question of the sufficiency of the plaintiffs' amended complaint, as against demurrers to the two causes of action therein set forth. The demurrers were interposed by defendant upon the ground that the facts pleaded did not constitute a cause of action, and, being by the court overruled, the defendant elected to stand thereon when judgment was rendered against him as prayed for, from which he appeals to this court.

The amended complaint, omitting formal parts, is as follows:

'The above-named plaintiffs, for cause of action against said defendant and for an amended complaint herein, allege: (1) That plaintiffs are now, and for some years last past have been, the owners in fee and possessed of certain premises with a dwelling house thereon in the city of Seattle, county of King, and state of Washington, and more particularly described as lot ten (10) in block ten (10) of the supplemental addition to Frank Pontius' addition to the city of Seattle. (2) That defendant now is, and at all the times hereinafter mentioned was, the owner and possessed of certain premises adjoining that of plaintiffs on the north, which said premises is particularly described as lot eleven (11) in block ten (10) of the supplemental addition to Frank Pontius' addition to the city of Seattle, King county, Wash. (3) That on or about October, 4, 1906, one W. E. Starr and wife deeded said lastnamed property to one Mary C. Finch, prior to the purchase of same by the defendant herein. That said deed from said Starr and wife to said Finch contained the following restriction clause: 'Said second party, her heirs and assigns, for the space of ten (10) years hereafter, is not to erect any flat building or tenement house on said premises, nor shall there be any residence or other dwelling house erected on said premises nearer to the street line than on a line with the two residences now on either side of said lot.' That defendant acquired said premises with full knowledge of the existence of said restrictive clause. That said restriction clause is a covenant running with the land, and it was thereby intended that no building should be erected on said premises closer to the street line than on a line with said two residences. (4) That defendant has applied for and received a permit to erect on said premises a garage and storeroom at a cost of $700, and before the commencement of this action had laid the foundation of same. That said building, when completed, would extend within a few feet of the sidewalk line and would project out some 15 or 20 feet beyond an imaginary line running from the front of said residence on either side of said lot.

'And for a second cause of action plaintiffs allege: (1) Plaintiffs hereby adopt and make a part hereof paragraphs 1 and 2 as set forth in their first cause of action. (2) That the defendant is proceeding to build, erect, and construct a public garage plant on the south half of his said lot which is next to and adjoining plaintiffs' said lot. That the representations and claims made by defendant that said structure is to be used as a garage, either public or private, is without foundation in fact. That said garage when completed will be a frail, loosely constructed frame structure 27 feet wide and about 15 feet high and about 15 feet above street level, and will be supported by sills and posts of small dimension entirely inadequate for the support of a building intended to be used as a garage. That said structure will extend nearly the entire distance east and west along the south line of defendant's lot and to within a few feet of plaintiffs' residence, and will entirely obstruct plaintiffs' light and air on the north, and is and will be a great damage to plaintiffs and a hinderance and obstruction to the enjoyment of their said property. That said structure has been and is being erected and maintained by the defendant maliciously with intent to spite, injure, and annoy the plaintiffs, who are adjoining property owners, as aforesaid. (3) That by reason of the premises, plaintiffs have no full, complete, and adequate remedy at law.

'Wherefore plaintiffs pray: that a mandatory injunction issue compelling the said defendant to refrain from erecting, or causing to be erected, a garage, or other building such as defendant is attempting to erect thereon; that a mandatory injunction issue to compel the removal of said portion of said building now erected thereon; that plaintiffs recover their costs in this action; and for such other and further relief as to the court shall seem just and proper.'

The only question presented in the brief of counsel upon the demurrer to the first cause of action is as to the sufficiency of the allegations thereof to show a violation or threatened violation of the building restrictions contained in the deed by which appellant holds his lot. By these restrictions it will be noticed appellant 'is not to erect any flat building or tenement house on said premises, nor shall there be any residence or other dwelling house erected on said premises nearer to the street line than on a line with the two residences now on either side of said lot.' Learned counsel for the respondents contend that the 'garage and storeroom' which they allege appellant is proceeding to construct is in violation of this restriction. It is plain that the building of such a structure on the premises would not be a violation of the building restrictions in the deed unless it can be said such structure is included within the terms 'flat building,' 'tenement house,' 'residence,' or 'dwelling house.' It also seems plain that none of these terms as ordinarily understood includes 'garage' or 'storeroom.' But learned counsel for respondents contend that 'the clear intention of the parties to the original deed containing the restriction was that there should be no building erected on said premises nearer the street line than on a line with two residences then on either side of said lot.' If this be the intention of the parties to the deed...