McLean v. Thurman

• Decision Date: 17 December 1954
• Citation: 273 S.W.2d 825
• Parties: Grandison McLEAN, Alfred McEwen, William McGoodwin and Billy L. Thompson, Appellants, v. George B. THURMAN and Lide F. Thurman, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 825

273 S.W.2d 825

Grandison McLEAN, Alfred McEwen, William McGoodwin and Billy L. Thompson, Appellants, v. George B. THURMAN and Lide F. Thurman, Appellees.

Court of Appeals of Kentucky.

Dec. 17, 1954.

B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Paul Mansfield, Lexington, for appellants.

F. Selby Hurst, Moloney, Moloney & Hurst, Lexington, for appellees.

SIMS, Justice.

This suit was brought by appellants for a declaration of rights with respect to certain deed restrictions and to enjoin appellees from permitting the use of their lot in a residential subdivision as a public passway. On motion for summary judgment made by appellees, the Chancellor denied the relief sought.

The first question presented arises upon appellees' motion to dismiss the appeal because a sufficient jurisdictional amount is not shown by the record. In view of its importance to the profession, we deem it proper to set forth in this opinion our reasons for denying this motion.

Insofar as pertinent here, KRS 21.060, prior to 1952, permitted parties to take an appeal to this court, as a matter of right, from all judgments in civil cases except '(a) Judgments for the recovery of money or personal property, or any interest therein, or to enforce any lien thereon, where the value in controversy is less than five hundred dollars, exclusive of interest and costs * * *.' (Our italics.) Subsection (2) provided: 'If the value of the amount or thing in controversy, exclusive of interest and costs, is as much as two hundred dollars, the Court of Appeals may grant an appeal from the judgment or final order of a circuit court * * *.'

Prior to 1952, in actions to obtain injunctive relief, an appeal could be prosecuted regardless of the amount involved. Burnside Supply Co. v. Burnside Graded Common School, 260 Ky. 482, 86 S.W.2d 160; Commonwealth v. Burnett, 274 Ky. 231, 118 S.W.2d 558.

As amended in 1952, this statute granted the same general right of appeal, but the exception in subsection (a) was changed to read: 'Judgments where the value of the amount or thing in controversy is less than twenty-five hundred dollars, exclusive of interest and costs; * * *.' (Our italics.) Subsection (2) remained unchanged.

KRS 21.080 was amended so as to increase the amount which would require a motion for appeal from $500 to $2500.

On their face the amendments to KRS 21.060 and 21.080, considered together with KRS 21.070 (which has been effective since 1914), appeared to make a monetary valuation of the matter involved in the controversy the criterion for determining: (1) if a party could take an appeal under and circumstances, and (2) if a party must file a motion for appeal in this court.

The question is immediately presented as to whether or not a monetary valuation of the amount or thing, to the extent of $200, must be shown by the record in every kind of action before this court has jurisdiction of the appeal.

The principal purpose of the amendment seems to have been to place real property in the same category as personal property. The requirement of a monetary valuation would presuppose that the rights asserted reasonably could be asserted in those terms. It seems clear that in certain types of cases the thing in controversy may not be reducible to or translatable into a monetary valuation. For example, cases involving the custody of a child, certain contempt proceedings, actions in the nature of mandamus and prohibition, and others, have since time immemorial been appealable, though the rights involved could not be stated in monetary terms.

The present action seeks a declaration or rights concerning the applicability of restrictions and covenants relating to real estate and also seeks to enjoin the defendants from using their property so as to impair the rights of appellants. It is alleged that the plaintiffs have suffered and will suffer irreparable damage. From the very nature of the controversy it is obvious that the rights involved are distinct from the tangible property of appellants and appellees and that such rights cannot be measured in dollars and cents.

We do not think the legislature, in amending the statute, intended to deny appeals in those actions in which the amount or thing in controversy is not translatable into a monetary valuation and may be said to transcend such valuation. See 4 C.J.S., Appeal and Error, § 56. We therefore construe the statute as not requiring a jurisdictional amount to be shown by the record in a case of this nature. To the extent that Brashear v. Payne, Ky., 1954, 266 S.W.2d 346, is in conflict with this conclusion, it is overruled.

It may be pointed out that declaratory judgment or injunction procedure may not be invoked to circumvent the requirement that a sufficient jurisdictional amount be shown where the actual amount or thing in controversy is of such a tangible nature that its valuation reasonably may be shown. See Newton v. Citizens' Bank of Shelbyville, 251 Ky. 790, 66 S.W.2d 7; Charos v. Jent, 293 Ky. 50, 168 S.W.2d 334.

We may say in passing that if the amount or thing in controversy is translatable into a monetary valuation, the burden is upon the appellant to have the record show that the required jurisdictional amount is involved. See Mullins v. Hall, Ky., 1954, 273 S.W.2d 831. If necessary KRS 21.070 may be invoked for this purpose. The motion to dismiss the appeal is denied.

Appellants are the owners of residential lots in Blue Ridge Acres subdivision in Fayette County near Lexington. Appellee Thurman (to whom we will hereafter refer as 'appellee') was developing an adjacent subdivision known as Dreamland. South Ridge Drive in Dreamland came to a deadend at the rear of lot 3, block D of the Blue Ridge Acres subdivision, which lot fronts on Blue Ridge Drive in the latter subdivision. Appellee purchased this lot prior to recording his plat of Dreamland. His apparent purpose was to dedicate a portion of it as a public street so that there would be a convenient entrance from Bule Ridge Acres subdivision to his Dreamland subdivision. An attempted dedication of a part of this lot for such purpose was made by him, and it is this use appellants seek to enjoin.

It appears from the facts shown on the motion for summary judgment that the original owner of the Blue Ridge Acres subdivision intended its use for residential purposes only and that it had adequate streets. The plat of this subdivision was recorded in 1945. As shown by one of the deeds to a lot in this subdivision, the use was restricted to residential purposes. In addition, the original owner by affidavit stated that one of the planned attractive features of this subdivision would be the lack of through traffic. It is the contention of appellants that appellee has devoted his lot to a restricted use prohibited by the restrictions.

While appellants argue extensively in their brief the question of whether or not notice of restrictions on appellee's lot was brought home to him, it appears to us from the court's opinion and judgment and appellee's brief that notice was not the issue upon which this case was or should be decided. It is appellee's contention that assuming he had notice of possible limitations upon the use of this lot, actually no legally recognizable restrictions had been imposed upon it. Let us examine the fact situation.

A deed to appellant McLean from the original owner of Blue Ridge Acres subdivision, executed and recorded prior to appellee's purchase, contained the following provisions:

'The foregoing grant is expressly subject to the following covenants and restrictions, * * * and the said Grantee in consideration of the agreement of the Grantor to insert the same covenants and restrictions in all contracts and deeds covering all lots in the above described subdivision, together with such additional restrictions in particular cases as he may deem advisable to more effectually preserve said lands for private residence purposes, which agreement on the part of the Grantor is a material consideration to the Grantee in accepting this contract, hereby covenants and agrees with the Grantor in order to assist the said Grantor in carrying out and maintaining his general plan for the sale and development of said subdivision and the preservation of the general character of the neighborhood as follows:

'First. No building shall be erected or altered or used on any lot in said subdivision (except as herein stipulated) for any purpose whatsoever other than:

'(a) One single residence with garage attached, either to the main body of the residence, or by a porch or by a breezeway--dwelling to be occupied by the Grantee, or his lessee, and for residence purposes only.

'* * *

'Second. The purpose of these restrictions are (is) to limit the use and occupancy of any one lot to a single family and their necessary servants.

'* * *

'Ninth. Altering Size of Lots--No lot shall be subdivided or in any respect be reduced in size by any method whatsoever.'

Similar provisions appeared in a recorded contract for the sale of property to one of appellee's grantors. This contract was specifically referred to in the deed to appellee by deed book and page number, but appellee's deed was one of general warranty and it contained no such restrictions.

Appellee takes the position that no restrictions were imposed upon his lot because they were not set forth in a recordable instrument in his chain of title. His argument is that (1) the contract which was in his chain of title was not a recordable instrument because not acknowledged (even though it was recorded), and (2) the recorded deed of one of the appellants was not in his chain of title.

Though it was stated in Holliday v. Sphar, 262 Ky. 45, 89 S.W.2d 327, that restrictive covenants may only be established by a 'recordable instrument', if the question was decisive we would hesitate to say that the sale contract, which was recorded and which was properly recordable if...