Mechling v. Dawson

• Decision Date: 13 May 1930
• Parties: Mechling v. Dawson et al.
• Court: United States State Supreme Court — District of Kentucky

Page 318

234 Ky. 318

Mechling v. Dawson et al.

Court of Appeals of Kentucky. (Chancery Branch, First Division).

Decided May 13, 1930.

1. Injunction. — Evidence held to show that street on which business building was to be erected was still residential in character, justifying restraint of violation of covenant against erection of business buildings.

2. Covenants. — Owner of lot in subdivision restricted to dwellings, though not objecting to erection of church therein, held not estopped to object to business building.

Though erection of church and parish house in subdivision restricted to use for dwelling purposes might technically violate covenants of deed preventing grantee from using building for other than dwelling purpose, violation of covenant by erection of church and parish house was too slight and inconsequential to effect material change in character and use of restricted territory.

Appeal from Jefferson Circuit Court

LAWRENCE F. SPECKMAN for appellant.

LUKINS & JONES for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

In the year 1888, Thomas S. Kennedy, who lived with his wife on a 22-acre tract of land situated on the south side of the old Shelbyville turnpike road about five miles from the court house in Louisville, subdivided that portion of the tract between his residence and the turnpike (now Frankfort avenue) into 11 building lots, with a street or court 100 feet in width leading to the residence. The subdivision was located in what was then known as the town of Crescent Hill. Crescent Hill was afterwards annexed to the city of Louisville, and the turnpike became Frankfort avenue. The lots in the subdivision were sold by Kennedy to various purchasers, and each of the deeds contained the following restriction:

"The said second party covenants and agrees that no building erected on the lot herein conveyed shall ever be used for business or manufacturing purposes but only as a family dwelling, and that no dwelling shall be less than two stories high in front, placed on the East line of Kennedy Avenue, and said building shall cost not less than $2,500.00."

Dr. H.E. Mechling owns lot No. 1, and also a strip of land 15 feet in width and running parallel with lot No. 1 along Frankfort avenue, which strip he acquired by deed containing a similar restriction. The Mechling property is located on the southeast corner of Frankfort avenue and Kennedy court. On the land is an old frame residence which is occupied by Dr. Mechling as a home.

This action was originally brought by Hattie E. Dawson, a lot owner in the Kennedy subdivision, to enjoin Dr. Mechling from constructing a business house on his lot in violation of the restriction. During the progress of the action the rector, vestry, and wardens of St. Mark's Protestant Episcopal Church, and Lucy Gray Poston, owners of lots in the subdivision, intervened and sought the same relief. On final hearing the original petition and the intervening petition of the rector, vestry, and wardens of St. Mark's Protestant Episcopal Church were dismissed for reasons not necessary to be considered, and an injunction was granted on the intervening petition of Lucy Gray Poston. Dr. Mechling appeals.

The principal ground on which appellant seeks to evade the effect of the restrictive covenant is that the change in the subdivision has been so radical and complete as to render the...