Koett v. Tate
| Decision Date | 14 March 1933 |
| Citation | 248 Ky. 135,58 S.W.2d 374 |
| Parties | KOETT et al. v. TATE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County, Criminal, Common-Law and Equity Division.
Suit by Chloe Koett and husband against T. Bracken Tate. Judgment for defendant, and plaintiffs appeal.
Affirmed.
Ware & Ware, of Covington, for appellants.
Rouse & Price, of Covington, for appellee.
Several years ago the owners laid out what is known as the Park Hills subdivision in Kenton county. The first lots sold were on streets near and south of the street railway. On some of these lots 24 two-family apartments, or St. Louis flats, were erected. Later on what is known as the Light Hills section of the subdivision was developed, and numerous lots were sold. On these lots, which are located some distance from the lots on which the 24 St. Louis flats were erected, were built residences varying in costs from $11,000 to $40,000. In 1931 Chloe Koett and her husband, A. B. Koett, acquired a lot in the Light Hills section of the Park Hills subdivision. In the fall of that year T. Bracken Tate began the erection on a lot which he had purchased in that section of a St. Louis flat or a house with two apartments. Thereupon the Koetts brought suit against Tate to enjoin the erection of the two-apartment house on the ground that the building violated the restrictions contained in the deeds to all the lots in the subdivision. From an adverse decision they have prosecuted this appeal.
All the lots in the subdivision were sold subject to the following restrictions:
It is conceded that the erection of the two-apartment house would not violate the provision that the lot should be used for residential purposes only, McMurtry v. Phillips Investment Co., 103 Ky. 308, 45 S.W. 96, 19 Ky. Law Rep 2021, 40 L.R.A. 489; Struck v. Kohler, 187 Ky. 517 219 S.W. 435, but insisted that it did violate the covenant that only "one dwelling" should be erected on the property conveyed. There is a wide difference of opinion among the courts as to the meaning of the words "one dwelling house" or "one dwelling" in restrictive covenants, some of the courts holding that the restriction is against plurality of use or occupancy, while others take the position that it is against plurality of houses. Cases supporting the first view are Powers v. Radding, 225 Mass. 110, 113 N.E. 782; Harris v. Roraback, 137 Mich. 292, 100 N.W. 391, 109 Am.St.Rep. 681; Rosenzweig v. Rose, 201 Mich. 681, 167 N.W. 1008; Sanders v. Dixon, 114 Mo.App. 229, 89 S.W. 577; Gillis v. Bailey, 17 N.H. 18; Rogers v. Hosegood, 2 Ch. 388, 69 L. J. Ch. N. S. 652, 48 Week. Rep. 659, 83 L. T. N. S. 186, 16 Times L. R. 489. These cases proceed on the theory that a building planned or designed for two or more dwellings cannot be properly described as one dwelling, or one-dwelling house, and that either the restriction means one dwelling for a single family on each lot or there is no restriction except one house on each lot designed to be a dwelling for as many families or persons as the owner sees fit. Cases taking a contrary view are Pierson v. Rellstab Bros., 219 A.D. 552, 219 N.Y.S. 404; Id., 246 N.Y. 608, 159 N.E. 671; Frederick v. Hay, 104 Ohio St. 292, 135 N.E. 535; De Lanley v. Van Ness, 193 N.C. 721, 138 S.E. 28, 57 A.L.R. 238; Crane v. Hathaway, 132 A. 748, 4 N. J. Misc. 293; Johnson v. Jones, 244 Pa. 386, 90 A. 649, 52 L.R.A. (N. S.) 325; Bolin v. Tyrol Invest. Co., 273 Mo. 257, 200 S.W. 1059, L.R.A. 1918C, 869. The latter cases...
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