McMurtry v. Phillips Investment Co., Etc.

• Decision Date: 12 March 1898
• Citation: 103 Ky. 308
• Parties: McMurtry v. Phillips Investment Co., Etc.
• Court: Kentucky Court of Appeals

103 Ky. 308

McMurtry v. Phillips Investment Co., Etc.

Court of Appeals of Kentucky.

March 12, 1898.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

SIMRALL, BODLEY & DOOLAN FOR APPELLANT.

BENNETT H. YOUNG ON SAME SIDE.

E. F. TRABUE OF COUNSEL ON SAME SIDE.

C. B. SEYMOUR FOR APPELLEE.

W. S. PRYOR ON SAME SIDE.

GEORGE B. EASTIN OF COUNSEL ON SAME SIDE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

This action was brought to restrain the erection of what is known in the record as an apartment house on St. James' Court in the city of Louisville. The language of the restricting clause in the conveyance controlling the matter is as follows:

"It is a condition of this deed that the property herein conveyed shall be used for residence purposes only, and that, in erecting a residence therein it shall be built of brick or stone and shall cost not less than seven thousand dollars and that in erecting said residence the front wall thereof shall be not less than thirty-five feet back from the sidewalk line of St. James' Court."

It is also averred that there was a symmetrical plan for improving this Court with single and segregated private residences which would be disturbed, in fact destroyed by the erection of the house complained of and notice of which plan was given the public by advertisements, posters and hand bills descriptive of the character of the buildings that were to be erected in the Court.

The proof shows that the building complained of is to cost some forty thousand dollars, is to be of brick and stone and its front wall is to be set back the required distance.

The controversy is whether this house is to be used for residence purposes only within the meaning of the deed.

The explanation of its character and in answer to the claim that there was to be in it a public or semi-public restaurant the originator of the scheme to erect this house, testifies that "there is to be no restaurant of a public nature; there is to be everything in this house to make housekeeping comfortable. Every apartment in the house is to have a parlor and dining room and one or more bed rooms and a kitchen. Every apartment is to have more than one bed room; there is only one four room flat. Provision is made in the house for hot and cold water and all other conveniences. The basement, in which is to be a large dining room, to be used by the occupants of the house if desired, also contains three sets of laundry tubs, that each apartment may have one or more days to use in laundering their...