Josephine J. Cantieny v. A. L. Boze And
| Decision Date | 21 February 1941 |
| Docket Number | 32,580. |
| Citation | 296 N.W. 491,209 Minn. 407 |
| Parties | Josephine J. Cantieny v. A. L. Boze And Another. |
| Court | Minnesota Supreme Court |
Action in the district court for Becker county to restrain defendants from operating a tourist camp upon certain property along Detroit Lake in said county. After findings for defendants, Byron R. Wilson, Judge, plaintiff appealed from an order denying her motion for a new trial. Affirmed.
Garfield H. Rustad and Shure & Shure, for appellant.
Henry N. Jenson and A. O. Sletvold, for respondents.
The opinion of the court was delivered by: Loring
Covenant -- restrictive covenants in deeds -- persons who may enforce.
1. Whenever land is developed under a general plan, reasonably restrictive covenants which appear in deeds to all lots sold are enforceable alike by the vendor and by the vendees and by their successors in title.
Covenant -- restrictive covenants in deeds -- violation -- use of property.
2. Restriction on the use of property "for any purpose other than as a place of residence" is violated by erection and operation of ten tourist cabins on a 50-foot lot as a cabin camp for transient guests.
Pleading -- defense of laches.
3. A defendant need not plead laches in his answer in order to avail himself of that defense.
Injunction -- laches barring right to injunction.
4. The court's finding that plaintiff's cause is barred by laches is sustained where, with full knowledge of defendant's violation of a restriction on the use of property for a purpose other than as a place of residence plaintiff failed to institute injunction proceedings until almost two years after the completion of the construction of the buildings which violated the restriction.
This is a suit to restrain the defendants from operating a tourist camp upon lost 6 and 7 in Pokegama Beach, which is platted in section 1, township 138 north, range 41 west, along Detroit Lake in Becker county. The trial court found for the defendants, and the case comes here on appeal from an order denying plaintiff's motion for a new trial.
It appears from the record that John K. West and Agnes B. West his wife, the owners of the property in section 1 above referred to, platted 41 lots in Pokegama Beach on May 17 1909, and later executed and delivered deeds to various purchasers of lots in the plat. All of the deeds contained a restriction which reads as follows:
"Provided however, that such premises shall not be used nor permitted to be used by said grantee, his heirs or assigns for the sale or manufacture of intoxicating liquors or shall any bawdy house be maintained thereon nor said premises be used for any unlawful purpose nor for any purpose other than as a place of residence and if said grantee, his heirs or assigns, shall permit or do any of the acts aforesaid premises hereby conveyed and all improvements placed thereon shall at once revert and become forfeited to and the absolute property of said grantor, his heirs, executors or assigns."
Cottages were erected on various lots, and it appears that the restriction in the deeds was part of a general plan of development calculated to restrict the platted property to residential purposes. The plaintiff became the owner of lots 4 and 5 through conveyance from the Wests which contained the restriction above referred to. The defendants in 1932 became the owners of lots 6 and 7 adjoining lot 5 by deed from their brother William, who had purchased them in 1929. The deed from William to defendants contained no restriction, though the deed from the Wests to William's predecessors in the title did contain the restriction. William erected some summer cottages on the lots in 1930, and there is no claim that these original cottages were not residences within the meaning of the restriction. Some time prior to and during 1936 the defendants built ten small cabins about 10 X 10 or 10 X 12 such as are commonly erected in the ordinary tourist camp. These cabins were placed in two rows on the 50-foot lot adjoining plaintiff's lots. They each contained a double bed, a two-burner gas plate, and some dishes. One row of cabins was placed close to the line of plaintiff's lots. There was a central laundry, toilet, and shower bath. A register of guests and cars was kept at defendants' office, which was not on these lots. It is claimed by the plaintiff that when the cabins were being erected her mother, who was then the owner of lots 4 and 5, protested to the defendants and advised them that the property was restricted, but that the defendants took the position that since there was no restriction in the deed from their immediate grantor they were not bound by the restriction in the deed from the Wests, and they continued to erect cabins and operate them by renting them to tourists. The defendants deny that any protest was made to them or to William. The court found for the defendants on this issue. The plaintiff became the owner of lots 4 and 5 by deed from her mother in January, 1937. Upon the trial below the court held that the restriction in the West deeds did not exclude cabins such as defendants had erected and that the plaintiff had been guilty of such laches that a court of equity would not afford her relief.
1. Whenever land is developed under a general plan, reasonably restrictive covenants which appear in deeds to all lots sold are enforceable alike by the vendor and by the vendees and by their successors in title. Velie v. Richardson, 126 Minn. 334, 148 N.W. 286; Godley v. Weisman, 133 Minn. 1, 157 N.W. 711, 158 N.W. 333, L.R.A. 1917A, 333; Deitrick v. Leadbetter, 175 Va. 170, 8 S.E.2d 276, 127 A.L.R. 849. There is no question here but that the restriction contained in the West deeds was in furtherance of the general plan to develop Pokegama Beach as a strictly residential district, and therefore the restriction was available to any of the lot owners as against their neighbors in the event of its breach.
2. The trial court held that the erection of the cabins or cottages by the defendants was not a violation of the restriction contained in the West deeds. We think the evidence is conclusively to the contrary and that the group of cottages or cabins was as much a violation of the clause as would have been the erection of a summer hotel. The fact that the cabins were separate structures did not change the reality that the defendants conducted a hostelry as a business and not merely the rental of summer cottages as residences. A group of ten cabins on one 50-foot lot conducted as rental property where overnight guests or guests for two or three days or by the week were registered and accommodated speaks for itself and is what is generally termed a tourist camp. The defendants themselves recognized this by keeping a register not only of the guests but of the cars as required by L. 1937, c. 186, 3 Mason Minn. St. 1940 Supp. §§ 10536-5 to 10536-8. They advertised the camp as "Boze Brothers Cabins." Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127, and Deitrick v. Leadbetter, 175 Va. 170, 8 S.E.2d 276, 127 A.L.R. 849, are in point.
3. We come to the proposition of laches, which was not pleaded in the original answer as a defense. At the close of the testimony the defendants proposed to amend their answer to set up this defense, but the court apparently did not rule on this proposal. The plaintiff did, however, state that in the event that it was granted "the record as it now stands would complete the plaintiff's case on the issue of laches and estoppel if such is an issue at this time in this case," to which the court replied, "Very well." While there are two lines of cases on the necessity of pleading the defense of laches and this court has apparently not committed itself to either, yet its utterances indicate that it takes the view that the defense need not necessarily be pleaded. Schmitt v. Hager, 88 Minn. 413, 416, 93 N.W. 110. The Supreme Court of the United States has taken this view. Sullivan v. Portland & Kennebec R. Co. 94 U.S. 806, 811, 24 L.Ed. 324, where the court said:
Courts of high standing have also taken this position. Suhr v. Lauterbach, 164 Cal. 591, 130 P. 2; Poulin v. Poulin,60 R.I. 264, 197 A. 878; Coon v. Seymour, 71 Wis. 340, 37 N.W. 243.
4. In Briggs v. Buzzell, 164 Minn. 116, 204 N.W. 548, it was said that the pith and substance of the doctrine of laches is unreasonable delay in enforcing a known right, and this court has held that the...
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