Logan v. Logan
| Decision Date | 16 December 1966 |
| Citation | 409 S.W.2d 531 |
| Parties | Catherine LOGAN etc., Appellants, v. Dulaney LOGAN et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Richard C. Oldham, Dorothy G. Cox, Oldham, Burroughs & Miller, Louisville, for appellants.
Stuart A. Handmaker, Milliken, Handmaker & Rosenstein, J. Royden Peabody, Jr., Stites, Peabody & Helm, Alfred J. Simon, Jr., Louisville, for appellees.
The judgment appealed from vitiated certain restrictions pertaining to 200-foot setback requirements from Arden Road in the city of Louisville, Kentucky, contained in two deeds dated 1912 and 1915. The judgment reasoned that there had been such change in the neighborhood, from a redivision of the land on one side of Arden Lane and a subdivision of the land on the other side, as to neutralize the benefits of the restrictions and render it unreasonable and impractical to carry out the original purpose and intention of the parties imposing the restrictions.
This action was filed by appellees.
The tract of land, containing approximately thirty acres and now owned by the fourteen appellees and two appellants, was conveyed December 23, 1912, by Peter Lee Atherton to Charles P. Ballard by a deed containing the following reservation.
'No buildings shall be erected within two hundred feet of either side of the aforesaid Arden Road, and no buildings except residences and those of the character of arbors, or other like structures designed chiefly for ornament, shall be erected within five hundred feet of either side of the road.' (Emphasis ours.)
It should be kept in mind that at the time this deed was executed, Peter Lee Atherton owned land immediately across Arden Road. Hence, the restriction was intended to apply to and for the benefit of the land sold and the land of Atherton on the 'other side of said road.'
Charles T. Ballard conveyed the thirtyacre tract to William B. Allen in 1915. By consent of both parties to this deed, Peter Lee Atherton joined as a party grantor therein for the sole purpose of modifying the setback restrictions in the 1912 conveyance. The 1915 modification reduced the 500-foot restriction of the 1912 deed to approximately 200 feet. The following is quoted from the 1915 deed:
'The third party (Atherton) joined in this deed for the purpose of altering restriction Number 3 contained in said deed and described above * * * and in lieu thereof the following restrictions are placed upon the property hereby conveyed and upon the property of the third party (Atherton) abutting on the 'Arden Road,' which restriction shall inure to the benefit of the said second and third parties and their successors in title * * *.' (Emphasis ours.)
There were other restrictions in these two old deeds, but they have been abandoned and are unimportant here.
In 1927, William B. Allen conveyed the identical tract to George Wilcox, and Wilcox divided the original boundary into three tracts.
The three tracts thus created passed through various owners until 1935 when all three tracts were purchased by Dulaney Logan. The restrictions mentioned above were carried in all the deeds down to Dulaney Logan.
Though it is perhaps immaterial to the issues in this case, in December of 1962 all the parties herein, except appellant Zack Logan and his wife, joined in an agreement to further modify the original restrictions to provide for a setback distance (from the center of Arden Road) of only one hundred fifty feet. This was done at the request of the persons owning property across Arden Road from the tract here involved.
In his findings of fact and conclusions of law, the chancellor found that: 'Insofar as a change within the area in question is concerned the mere breaking up of this plot of ground into five parcels is evidence per se of a change.' It was further found that: 'The restrictions * * * were vitiated by natural changes and human failure' at the time Dulaney Logan acquired title to the entire boundary.
At the time Dulaney Logan acquired the whole tract, he had a right to terminate all restrictions...
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...be disturbed. CR 52.01; Walters v. Walters, Ky., 419 S.W.2d 750 (1967); Hatfield v. Hatfield, Ky., 417 S.W.2d 218 (1967); Logan v. Logan, Ky., 409 S.W.2d 531 (1966). Unfortunately, in cases such as Price v. Pike, Ky., 458 S.W.2d 440 (1970); Casey v. Casey, Ky., 436 S.W.2d 783 (1969); and Ge......
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...their enforcement in equity, where it is no longer possible to accomplish the purpose intended by such covenant.’ " Logan v. Logan, 409 S.W.2d 531, 534 (Ky. 1966) (quoting Bagby v. Stewart's Ex'r, 265 S.W.2d 75, 77 (Ky. 1954) ); see also Colliver v. Stonewall Equestrian Estates Ass'n, Inc.,......
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...by the restrictions has been abandoned sufficiently to operate ipso facto as a vitiation of the restrictions. Logan v. Logan, 409 S.W.2d 531, 534 (Ky. 1966); see also Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120 S.W.2d 1024 Despite the other witnesses for the Hyatts, who testified th......
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