Laney v. Early

• Decision Date: 21 March 1974
• Parties: L. S. LANEY et al. v. Willard M. EARLY et al. SC 268.
• Court: Alabama Supreme Court

Page 103

292 So.2d 103

292 Ala. 227

L. S. LANEY et al. v. Willard M. EARLY et al.

SC 268.

Supreme Court of Alabama.

March 21, 1974.

Corretti, Newsom, Rogers, May & Calton, Birmingham, for appellants.

Ernest W. Weir, Birmingham, for appellees Ralph J. Maddox et al.

McCALL, Justice.

The parties in this case are all of the separate owners of the several lots of land, composing Roebuck Court Subdivision, Birmingham, Albama. The lots of the appellants, who were complainants in the trial court, of the appellee, Faith Evangelical Lutheran Church, and of the appellees, Early, constitute all of the lots in Roebuck Court that are situated north of United States Interstate 59, referred to as I--59 hereafter. It traverses the subdivision eastward and westward. The appellees, other than the appellees, Faith Evangelical Lutheran Church and Early, own the remaining lots in the subdivision, and their lots are located south of I--59.

The suit was filed to have the equity court relieve those lots north of I--59 from the restrictive covenants which the onetime landowner, Roebuck Springs Land Company, Inc., imposed on all lots in Roebuck Court, when it dedicated and recorded a plat of the property in 1925. These covenants, among other things, restrict the use of the lots for residence purposes only, with not more than one dwelling house and necessary servant houses, garages and other outhouses to be built on a lot. The covenants expressly provide that no business house, double house or apartment house of any kind whatsoever shall be built on a lot. There also is a provision that the grantees agree to conform to the conditions, limitations, and restrictions, which attach to and run with the land, until the owners of four-fifths of all of the lots in the survey agree in writing to free the lots from them. Roebuck Court has been developed as a restricted single family residential neighborhood. With the exception of the Faith Evangelical Lutheran Church, no structures other than those permitted by the restrictive covenants exist on any lot.

Interstate 59 will be elevated to a height of eighteen to twenty feet above ground level. It will utilize a right of way approximately 300 feet wide which will accommodate six lanes of interstate and local motor vehicular traffic. The lots on its south are located along streets and drives in the subdivision. Red Oak Road, which is a street in the subdivision, has no access to I--59, but will pass under it and will afford subdivision residents, and others traveling along it, a way of ingress and egress to and from U.S. Highway 11 (called U.S. 11), with which it intersects. This highway also runs eastward and westward, and bounds Roebuck Court on the north. The appellants', the church's and the Earlys' lots are located in the subdivision between I--59 and U.S. 11, and are adjacent to U.S. 11. North of U.S. 11 is a municipal golf course. U.S. 11 is a heavily traveled five lane thoroughfare that also serves residents and those coming to this eastern section of Birmingham as a main arterial highway leading to downtown Birmingham. Center Point and Huffman have commercial districts east of the Roebuck Court Subdivision. Immediately to the west of the subdivision is Division Avenue. Across it are some businesses in that block, but there are none immediately across U.S. 11 from the subdivision, where the golf course is located. Fourth Avenue South, which runs east and west, is to the south of the subdivision and is a frequently traveled street leading to and from the business distrct of downtown Birmingham. There are limited interchanges for traffic to enter and leave I--59 at both the eastern and western areas of the subdivision.

Essentially, the appellants aver that, since the imposition of the restrictions, the nature and character of the neighborhood, in the area in which their lots, that of the church, and that of the Earlys are located, has undergone substantial and progressive change, that the restrictions impose an undue burden on their particular lots, which is inequitable and oppressive, that the lots are no longer suitable for single family residential purposes, and that, because of the location of I--59, the lots are more suitable for business and commercial development than for residential purposes.

The relief prayed for is that the restrictions be adjudged and decreed invalid or unenforceable against the property of the appellants, the appellees Early, and Faith Evangelical Lutheran Church, or any part of it because of the changes in the nature and character of the neighborhood since the location of I--59 through the Roebuck Court Subdivision. The bill prays also for general relief.

Since I--59 separates the lots to its north from those of the appellees to its south, the appellants contend that this, together with the heavy flow of traffic along U.S. 11 and the development of commercial districts close-by have caused the neighborhood to lose its identity as a restricted residential subdivision.

The opposition to removing the restrictions is that commercial activity has not invaded Roebuck Court and such always has been resisted because it will greatly diminish the desirability of the subdivision as a residential area, depreciate the value of their homes, and create discomfort in their occupancy and use. The appellees contend that development of the subdivision bordering U.S. 11 on the south as a commercial district will result in more traffic congestion on that highway in the area, as well as on the streets in the subdivision. They further contend that the removal of the restrictions will bring on offensive conditions such as disagreeable noises, noxious fumes and crowds of people patronizing the businesses, all of which will render their adjacent homes less desirable and less enjoyable as residences.

There are a total of thirty-two houses in the subdivision. They are far above average in architectural design and outward appearance. They are attractive and are substantial. Spacious lawns abound the homes which are neatly kept in settings of flowers, shrubs and trees. From colored photographs received in evidence, both the homes and surrounding yards denote interest and care by the occupants in their upkeep. Some of the residents have occupied their homes for twenty years or more. Others have since bought in the subdivision because it was residential.

The physical outlay of existing streets in the subdivision and the bounding arterial thoroughfares remains the same as before the advent of I--59, with residents having the same means and convenience of access to them. The completion of I--59 will not change or interfere with this facility, nor will it, of itself, increase traffic flow over these existing ways in that vicinity, but will rather relieve any congestion in the area by hastening the movement of motorists over its six lanes of highway.

After hearing a volume of oral testimony in open court from witnesses on each side of the issue, the trial court found and decreed that the appellants had failed to meet the burden of proof required of them and that they were not entitled to the relief prayed for.

The restrictive covenants, imposed upon the dedication and recording of the plat of survey, recite that they are covenants running with the land. In consequence, they are mutually binding on the purchasers of lots in the subdivision. McMahon v. Williams, 79 Ala. 288; Morris & Morris v. Tuskaloosa Manufacturing Co., 83 Ala. 565, 3 So. 689; Webb v. Jones, 163 Ala. 637, 50 So. 887; Pugh v. Whittle, 240 Ala. 503, 199 So. 851; Allen v. Axford, 285 Ala. 251, 231 So.2d 122.

Clearly, a building program was implemented by the original landowner, and the restrictive covenants made it an inducement to purchase lots in the subdivision. The appellants and appellees hold deeds containing the restrictive covenants. The validity of their existence is not disputed. In Scheuer v. Britt, 217 Ala. 196, 115 So. 237, the court stated:

'* * * (W)here a defined district is platted and publicly offered as a restricted district, the restrictive clauses in the several deeds are construed as mutual covenants, each lot subject to a servitude or easement in favor of all the others, including unsold lots of the grantor in the same plat. Such servitude being appurtenant to and running with the land, any subsequent purchaser of a lot within the plat, with notice of the easement thereon, takes it subject thereto, as between himself and other lot owners, although no restriction is incorporated in his deed.' See also Scheuer v. Britt, 218 Ala. 270, 118 So. 658; Marsh v. Cheeseman, 221 Ala. 390, 128 So. 796; Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451; Allen v. Axford, 285 Ala. 251, 231 So.2d 122 and numerous authorities stated in these cases.

The appellants assign as error:

(1) The refusal to remove the restrictive covenants insofar as they apply to the property of the appellants; and

(2) The refusal to annual the restrictive covenants described in the bill of complaint.

The second assignment must fail because the bill does not purpose to free the entire subdivision from the restrictive covenants, but only the lots north of I--59. Therefore we are only concerned with the first assignment.

In citing the case of Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483, the appellants argue that because restrictions on the use of land are not favored in the law and are therefore to be strictly construed against the enforcement thereof, the burden was not on the appellants to prove justification for having the restrictions removed, but was on the appellees to show to the satisfaction of the trial court that the maintenance and continuation of the restrictions are neither onerous, oppressive or unjust, and that it would be detrimental to them (the appellees) for the restrictions to be removed.

The rule alluded to in Bear v. Bernstein, supra, is not a rule of procedure, but a rule of construction to be applied...