Meagher v. Appalachian Elec. Power Co.

• Decision Date: 10 September 1953
• Citation: 77 S.E.2d 461,195 Va. 138
• Parties: RICHARD L. MEAGHER, ET AL. v. APPALACHIAN ELECTRIC POWER COMPANY, A CORPORATION
• Court: Virginia Supreme Court

Page 461

77 S.E.2d 461

195 Va. 138

RICHARD L. MEAGHER, ET AL. v. APPALACHIAN ELECTRIC POWER COMPANY, A CORPORATION.

Supreme Court of Appeals of Virginia

September 10, 1953.

Dodson & Pence, Earl A. Fitzpatrick and Jack B. Coulter, for the appellants.

Woods, Rogers, Muse & Walker, for the appellee.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

This is an appeal from a final decree sustaining a demurrer to and dismissing the bill of complaint filed by Richard L. Meagher and others, hereinafter called the plaintiffs, against the Appalachian Electric Power Company, hereinafter called the defendant, seeking alternative relief against the defendant for the erection of high-voltage transmission towers on certain lots owned by it, which erection the plaintiffs claimed was in violation of the restrictive covenants binding on the lands of the plaintiffs and the defendant. The plaintiffs sought either to have the defendant corporation enjoined from using its property for other than residential purposes, or alternatively, to require it to exercise its privilege of eminent domain with respect to the alleged property rights of the plaintiffs.

The principal allegations of the bill may be summarized thus: The plaintiffs, Richard L. and Laura A. C. Meagher, W. Earl Allen, Jr., and Mildred H. Allen, and Charles S. Patton, Jr., and Frances S. Patton, are fee simple owners of certain lots of land lying in an 'exclusively residential' subdivision known as 'Grubb Land Development' in Roanoke county, just west of the city of Roanoke. The Meaghers and the Allens acquired their properties in 1948, and the Pattons acquired theirs in 1951.

Prior to 1950 another of the plaintiffs, Herman Weaver, acquired certain lots in a similar residential development known as 'Crestmoor,' which is adjacent to and immediately south of the Grubb Land Development.

The deeds whereby these several properties were conveyed were expressly made subject to certain covenants, conditions and restrictions, which by recorded instruments had been imposed on and ran with all of the lands in the two subdivisions for a period of fifty years from January 1, 1946. Among the covenants and restrictions were these:

'All persons who shall acquire any land described in this deed shall take and hold the same, and agree and covenant with the proprietors of said land, and their assigns and each of them, to conform to and observe the following restrictions and conditions as to the use thereof. * * *

* * *

'(2) No portion of the land hereby conveyed shall be improved or occupied for other than residential purposes, and no flat, apartment house, trailer, or temporary living quarters shall be erected thereon.

* * *

'(6) No intoxicating liquors shall be sold on any of the premises hereby conveyed, nor shall any cows, hogs, or sheep be kept thereon; nor shall any noxious or offensive trade be carried on upon any lot, nor shall anything be done thereon which may be or become a nuisance to the neighborhood.'

In April, 1950, the Appalachian Electric Power Company purchased from Marcia Johnston and Robert L. Brown, respectively, certain lots in the Grubb Land Development, and in March and April, 1950, it acquired from H. G. Cole, Jr., Olen F. Levell, Jr., and Lawrence D. Johnson certain lots in the Crestmoor subdivision. Whether the several deeds by which these properties were acquired were expressly made subject to the covenants and restrictions which had been imposed on the lands is not disclosed in the bill. However, it is alleged that the defendant took the several properties with constructive notice of the covenants and restrictions which had been expressly incorporated in prior deeds in the defendant's chains of title, and that hence its acquisition of the property was subject thereto.

The plaintiffs, T.J. and Nellie G. Orander, Robert P. and Maude M. Grogan, Florence L. John, Lake L. Newton, and George W. and Miriam B. Parsons, are the owners of properties in a residential district known as 'Belle Air' subdivision, which lies immediately to the east of the Grubb Land and Crestmoor subdivisions. The bill alleges that these Belle Air owners acquired their properties by deeds which were expressly subject 'to the identical covenants, restrictions and conditions applying to the Crestmoor subdivision.'

The plaintiffs, J. Kyle Montague and Lucy M. Montague, are the former owners of the property in the Grubb Land subdivision now owned by the Pattons, having conveyed it to them in May, 1951, and after the defendant had acquired its properties in the vicinity.

The bill alleges 'That relying upon the residential character of this area as assured by the aforesaid several separate sets of restrictions, covenants and conditions, which being equitable servitudes enured to their benefit and thereby constituted vested property rights, the complainants at great cost and expense planned for' and constructed their respective residences.

It is further alleged that in violation of the 'duly recorded covenants, restrictions and conditions' binding upon the lands which the defendant had acquired in these subdivisions, and over the protest of the plaintiffs, the defenant has erected 'for commercial use' 'a large, unsightly, obnoxious and dangerous steel tower,' standing over 100 feet high, 'with three crossarms and seven high-voltage transmission lines,' on the lot in the Grubb Land subdivision which it acquired from Marcia Johnston, and a similar tower on the lot in the Crestmoor subdivision which it acquired from Lawrence D. Johnson, and has announced its plan to erect similar towers, and for the same purpose, on the other lots which it owns in these subdivisions. These acts of the defendant, it is alleged, have the effect of 'greatly detracting from the value of the general area as an exclusively residential district,' constitute a violation of 'the vested property rights' of the plaintiffs which had been secured to them by such restrictions, and a taking and damaging of their properties without due process of law.

There is no allegation that any of the defendant's structures have been located or are planned to be located on, or that any of its transmission lines will cross over, any of the lots located in the Belle Air subdivision.

The prayer of the bill is in the alternative, that the defendant corporation 'be enjoined from using its property for other than residential purposes and be required to conform with and abide by the restrictions, covenants and conditions applying to its lands;' or, if injunctive relief be denied 'that the defendant corporation then be ordered to exercise forthwith its privilege of eminent domain with respect to the rights' of the plaintiffs, as required by law.

In its demurrer, which was sustained, the defendant advanced these propositions: (1) The use of its property for the purpose stated does not violate any of the restrictive covenants which attached thereto; (2) The plaintiffs' rights in the restrictive covenants are not 'property' within the meaning of section 58 of the Constitution and the laws of the State, with respect to the taking and damaging of property for public uses; (3) No element of damage compensable under the Constitution and the laws of the State is alleged; (4) The several plaintiffs whose properties are located in the Belle Air subdivision have no enforceable interest in the alleged breach of the Grubb Land and Crestmoor restrictions, nor has any of their property been taken or damaged within the meaning of the Constitution and the laws of the State; (5) Neither the Montagues nor Pattons have any rights in law or in equity to the relief sought, the Montagues having sold their interest in the property, and the Pattons having acquired it with full notice and knowledge of the defendant's intended use thereof.

In its written opinion the trial court found it unnecessary to pass upon the first point raised by the demurrer, but sustained the others.

We are of opinion that the use and intended use by the defendant of its lands in erecting the steel transmission towers thereon violate the covenants, restrictions and conditions applying to the lands. It is plain that the clear intent of those who imposed the restrictions was to assure that the area be used exclusively for residential purposes. By the terms of the covenants and restrictions 'all persons who shall acquire any land' in the subdivisions were to 'take and hold the same,' and agreed 'to conform to and observe' the recited 'restrictions and conditions as to the use' of the lands. One of the covenants is that 'No portion of the land * * * shall be improved or occupied for other than residential purposes, * * *.' (Italics supplied.) The restriction is on both the nature of the improvement, that is, the type of structure to be erected on the land, and the use or occupancy of the property. Both are confined to 'residential purposes.' Manifestly, the erection of a 100-foot steel tower to support high-voltage transmission wires is both an improvement and occupancy 'for other than residential purposes.'

The covenants here are quite different from those in Stokely v. Owens, 189 Va. 248, 52 S.E. (2d) 164, upon which the defendant relies. There the type of construction was limited to a residence, with an additional covenant that 'no noxious or offensive trade or activity' should be carried on upon the property. We held that these restrictions, read together, did not exclude a commercial business conducted in a residence unless it were 'noxious or offensive.' Here the restriction, as has been observed, excludes both the type of improvement and use of the property 'for other than residential purposes.'

The next question is whether the restrictive covenants applicable to all of the lots in the subdivisions are a property right in favor of those for whose benefit they were imposed. The precise question has not heretofore been presented to this court and...