Ludgate v. Somerville

• Decision Date: 31 May 1927
• Citation: 121 Or. 643,256 P. 1043
• Parties: LUDGATE v. SOMERVILLE.
• Court: Oregon Supreme Court

256 P. 1043

121 Or. 643

LUDGATE v. SOMERVILLE.

Supreme Court of Oregon

May 31, 1927

Appeal from Circuit Court, Multnomah County; Robert G Morrow, Judge.

Injunction suit by Sophronia Ludgate against Robert Somerville. From a decree for plaintiff, defendant appeals. Affirmed.

George Black, Jr., of Portland (Platt, Platt, Fales & Smith, of Portland, on the briefs), for appellant.

George W. Gearhart, of Portland, for respondent.

BELT J.

This is a suit to enjoin the violation of certain deed restrictions upon lots in Laurelhurst addition to the city of Portland. This addition was platted in 1908 and all deeds subsequently executed contained restrictions, the purpose of which was to establish a strictly residential district. The restrictions ran for a period of 25 years from and after January 1, 1909. Laurelhurst has 117 blocks subdivided into 2,135 lots. It is bounded on the north by Halsey street; upon the south by East Stark street; on the east by East Forty-third street; and on the west by East Thirty-second street. The northwest corner of this addition is diagonally crossed by Sandy boulevard, one of the main arteries of travel leading from the city to the famous Columbia River Highway, which leaves it at the intersection of East Thirty-seventh street. Reference to the following plat will help to explain the situation of the parties:

RPT.CC.1927104344.00010

(Image Omitted)

Plaintiff is the owner of lot 11, block 38, and ever since she acquired same in 1919 has there maintained her home. Defendant owns the triangular lot in block 37, which is 100 feet from plaintiff's property. He obtained title thereto in February, 1924, and proposes, unless restrained to construct on it a modern gasoline service station. It is his contention that the part of Laurelhurst abutting upon Sandy boulevard has so completely changed in character that it is no longer suitable for residence purposes. He asserts that his lot has absolutely no value except for business purposes; that the construction of a gasoline service station would be of no injury to plaintiff; and that it would be inequitable, oppressive, and unjust to deprive him of the use of his property as contemplated. It is also claimed that the building restrictions relative to the property in question have been superseded by a zoning ordinance initiated by the people of the city of Portland in 1924, which, among other things, purports to permit certain business activity in that portion of Laurelhurst on both sides of Sandy boulevard and 100 feet back thereof. From a decree enjoining him in accordance with the prayer of the complaint, defendant appeals.

There is no question that the construction of a gasoline filling station is in violation of the building restrictions in Laurelhurst. What is the effect of the zoning ordinance purporting to permit the operation of such business? Does it supersede or nullify the restrictions previously put upon the property by those who platted it? This interesting and important question is res integra in this state. After diligent search we have been able to find only one jurisdiction wherein the point has been squarely passed upon. Gordon v Caldwell, 235 Ill.App. 170. The zoning ordinance of Portland divides the city into four districts. It undertakes to place no restriction upon single detached dwelling houses. As stated in section 2 of the ordinance, it was "for the purpose of regulating the location of trades and industries ***" The primary object of the law, without doubt, was to prevent the invasion of residential districts by commercial interests. The original owner of Laurelhurst undertook to do by covenant and agreement that which is in keeping with the general legislative policy of the city. The only justification for such exercise of the police power is that it has some rational relation to the public health, morals, safety, or general welfare. The general scheme of maintaining and perpetuating Laurelhurst as a high class, exclusively residential district certainly promotes the general welfare. The contractual obligations imposed upon all lot owners is not contrary to public policy. An act which so deprives a citizen of his property rights cannot be sustained under the police power unless the public health, comfort, or welfare demands such enactment. It cannot well be argued that the purpose to enjoy that which we are pleased to call home and to protect it against the encroachment of commercial interests is inimical to public welfare. The precise question was considered in Gordon v. Caldwell, supra, and the court said:

"Notwithstanding said [zoning] ordinance the owners of said lots have the constitutional right to make use of them in accordance with such restrictions so long as they do not endanger or threaten the safety, health, and comfort or general welfare of the public, *** and the fact that said subdivision has been so classified does not require the owners of said lots to yield the rights secured by such covenants. We fail to see that their enforcement in any wise contravenes public policy."

Plaintiff purchased her lot in reliance upon the covenants in her deed and had the right to expect that every other lot owner in Laurelhurst would comply therewith. Grussi v. Eighth Church of Christ, Scientist, 116 Or. 336, 241 P. 66. Such is a property right of which she cannot be divested by legislation of the character in question.

Who is clamoring for this gasoline service station? Surely not the public. No great public inconvenience will result if consumers of gas are obliged to go 1,900 feet to that part of Sandy boulevard to which the restrictions do not apply. True this triangular lot, from defendant's standpoint, would make an ideal service station, and, no doubt, much profit would result. However, the call of Mammon makes no appeal to equity. Police power is not to be exercised to thwart or nullify lawful agreements which in no way operate to the detriment of the public welfare.

Besides Sandy boulevard, there are other main arteries traversing Laurelhurst. If the restriction is to be removed as to one, it may be as to others. If the city can authorize the operation of business within the 100-foot strip, it could extend back for 1,000 feet, or it could throw the entire district open to commercial activity. We conclude that the zoning ordinance has no validity so far as it contravenes the restrictions in question.

Has the residential character of Laurelhurst adjacent to Sandy boulevard so changed by reason of surrounding business activity that equity will not intervene to prevent the violation of these building restrictions? Has there been such a radical change that the restrictions can no longer serve the purpose for which they were intended? Ordinarily, equity may be invoked to enforce negative agreements and clauses in deeds restricting the use of real property. Duester v. Alvin, 74 Or. 544, 145 P. 660. However, it does not follow that equitable jurisdiction will be exercised in all cases where there has been a violation of a legal right. Under some circumstances the party injured may be relegated to his remedy at law. Whether injunctive relief is to be granted is a matter within the sound legal discretion of the chancellor, to be determined in the light of all the facts and circumstances. Many authorities could be cited wherein equity has refused to intervene, and, perhaps, even more where it has assumed jurisdiction. Each case must be considered in the light of its own particular facts. For this reason it would be a useless and endless task to review and distinguish the large number of cases cited. We prefer to discuss the facts in the instant case as applicable to well-recognized equitable principles.

Many courts have undertaken to state the rule for the...