Linwood Park Co. v. Vandusen

• Decision Date: 16 October 1900
• Parties: LINWOOD PARK CO. v. VANDUSEN, Same SAME v. DUDLEY
• Court: Ohio Supreme Court

58 N.E. 576

63 Ohio St. 183

LINWOOD PARK CO. v. VANDUSEN, Same

SAME v. DUDLEY

Supreme Court of Ohio.

October 16, 1900

1. When a corporation, which has for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings on the same, leases a part of such land with restrictive covenants in the lease that the lessees "during all meetings would be subject to the rules and regulations of said meeting," and "would use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company," such covenants are valid, and binding on the lessees.

2. Upon a breach of the covenants and to restrain an irreparable injury resulting therefrom, injunction is a proper remedy.

3. Where such lessees make a business of renting rooms in their buildings on such leased premises to temporary occupants, and refuse to obtain a special permit from the lessor, and refuse to comply with the reasonable requirements of the lessor in regard to the privilege of so using the leasehold, such use is a breach of the covenant to "use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company."

4. The refusal to pay a gate fee, during the meetings, for admission to the grounds of the plaintiff on which the buildings of the defendants are situated, the same as charged to all other persons, is a breach of the covenant that the lessees "during all meetings would be subject to the rules and regulations of said meeting."

Syllabus by the Court.

Error to circuit court, Lorain county.

Actions by the Linwood Park Company against George Van Dusen, John Rose and others, and A.L. Dudley and others. Decree for defendants and dismissing cross petition in error. From the decree plaintiff brings error, and defendants assign cross error. Judgments dismissing petition reversed. Judgments dismissing cross petitions affirmed.

The petitions in these cases and the leases upon which they are founded are substantially alike, except in names, descriptions of property, amounts of money, and dates. They set out that the plaintiff, the Linwood Park Company, is a corporation having its principal office in Cleveland, Ohio; that it is the owner in fee simple of a tract of land in Erie county, Ohio, known as "Linwood Park"; that it entered into a contract of lease with the defendant by the terms of which it leased to the defendant his executors, administrators, and assigns, for the term of ninety-nine years, the described lot in said Linwood Park. Plaintiff further alleges: "That the said contract of lease was made with said defendant upon the following conditions: That the said defendant, during all meetings held at said park, should subject himself to the rules and regulations of said meetings, and that defendant will use such premises for the purposes of a private dwelling or residence only, except on special permit from the company. Plaintiff says that it is further provided in said lease that, if the defendant should fail to perform any or all the aforesaid covenants herein made for the space of three months after due notice given, this lease shall be null and void; that said due notice was given to defendant and plaintiff further says that it has performed all the conditions of said lease to be performed by it; and plaintiff further says that said lease was duly executed and acknowledged by said defendant, and recorded on the records of Erie county, at Sandusky, Ohio." Plaintiff says that defendant was permitted to build upon the leased lot of land a dwelling house; and that in 1895 the defendant was permitted by the plaintiff, upon payment of a sum of money to use the premises for purposes other than that of a private dwelling or residence, to wit, to rent rooms and beds for hire in said dwelling; and that a like permission was given in 1896 upon payment by defendant to plaintiff of the sum of $1.50 for each and every bed in said dwelling above the number of four. The plaintiff further alleges that each of the defendants did pay for the privilege of renting rooms and beds in his dwelling, but that for the years 1895 and 1896 in two of the cases, and for the year 1896 in the other case each of the defendants refused to pay anything, although they have during that time rented many rooms and beds in their said dwellings, and are threatening to rent rooms and beds therein, contrary to the terms of said leases, and without license or permit from the plaintiff, and refuse to pay anything therefor, and declare that they are under no obligation to do so. Plaintiff further says that it does not know how many beds were rented by the defendants in the year 1896, and asks that each defendant may make the number known by answer. And the plaintiff also says that the dwelling houses built in said park are designed for occupancy during the summer months only; that it has many lots for sale in said park; that it has a large hotel in said park, and that the use by defendants, respectively, of their dwellings as public boarding houses or tenement houses causes irreparable injury to the plaintiff, not only in the profitable maintenance of its hotel, but also in the sale of its lots; and that it was this very act that the plaintiff contracted against by the terms of his lease and by notice that said dwelling houses could be used for the purpose of private residences only, and that the keeping of boarders and roomers would not be permitted except upon special license, if granted by the plaintiff. Plaintiff says that the defendants went into possession under their lease, and are now in possession, and prays that an account be taken of the indebtedness existing between plaintiff and the defendants respectively; that they be ordered to pay into court the amount found to be due, and be enjoined from renting beds or rooms in their dwelling houses; and for other relief.

Each of the defendants, for answer, not denying that plaintiff is a corporation, nor that the lease was as alleged, nor that a dwelling house has been erected on said real estate, nor that defendant has refused and still refuses to pay to the plaintiff any money for each and every bed above the number of four in said dwelling, nor that the defendant intends to rent rooms in said dwelling house in the future, nor that he declares that he will not pay and is under no obligation to pay to plaintiff any consideration whatever for the pretended privilege of so doing, denies each and every other allegation and averment contained in the petition. Each defendant says that he was induced to build as he did upon the representation by the plaintiff that he would be permitted to rent and lease the rooms of his dwelling, and that the house is constructed as a dwelling house, and with special reference to the renting and leasing of part of the rooms thereof, of which the plaintiff had full notice and knowledge, and made no objection thereto; and that, if defendant is not permitted to use said house for the said purposes for which the same was constructed, the value thereof will be thereby greatly impaired and lessened, and all without the fault of the defendant. In the Dudley case there is the additional averment that, if the use of said house as described in the petition is a use of the premises for purposes other than of a private dwelling or residence only, defendants have received special permission from the plaintiff so to use said premises. Defendants also deny the corporate power of plaintiff to maintain and operate a hotel.

By way of cross petition each of the defendants alleges that plaintiff, by the erection of gates between said dwellings and the highway, prevents defendants from having access to their dwellings from the highway except upon payment of certain sums of money to the plaintiff, and prays that the plaintiff may be enjoined from maintaining said gates and from excluding the defendants from having access to or the possession of said lands and the dwelling houses situated thereon. Plaintiff denies the statements of the answers, and by way of answer to the cross petitions says that it has charged certain sums to the defendants and to all others for the right and privilege of using that portion of the park in possession of the plaintiff,-that is, the beach, the grove, and certain paths and byways accessory thereto; and that when the defendants entered into the contract of lease they received notice that they would be obliged, as part of said contract, to pay said fee, and that they have always and without complaint paid the same.

The findings of the circuit court are as follows:

"This cause coming on for hearing upon the petition of the plaintiff, the answer and cross petition of defendant George Van Dusen, the reply and answer of plaintiff, and the reply of defendant, and the evidence submitted, upon due consideration, and at the request of plaintiff made in open court when the decision was rendered, the court finds the following facts and its conclusions of law separately:

"(1) That the plaintiff is a corporation duly incorporated under the laws of Ohio, having for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings upon the same, and the said plaintiff was, prior to the 31st day of August, 1891, the owner in fee simple of all that tract of land lying along the shore of Lake Erie, in the village of Vermillion, Erie county, Ohio, and known as ‘Linwood Park,’ and including the premises leased by plaintiff to defendant.

"(2) That on the 31st day of August, 1891, plaintiff entered into a written contract of lease with defendant under the terms of which plaintiff leased to defendant, his executors, administrators, and assigns, for the

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