Melson v. Ormsby

• Decision Date: 17 March 1915
• Docket Number: 29775
• Citation: 151 N.W. 817,169 Iowa 522
• Parties: J. G. MELSON, Appellant, v. A. S. ORMSBY, Appellee
• Court: Iowa Supreme Court

151 N.W. 817

169 Iowa 522

J. G. MELSON, Appellant, v. A. S. ORMSBY, Appellee

No. 29775

Supreme Court of Iowa, Des Moines

March 17, 1915

Appeal from Cerro Gordo District Court.--HON. M. F. EDWARDS, Judge.

PROCEEDINGS by way of injunction to restrain defendant from erecting a house in excess of a limitation in height fixed in his deed the covenant in the deed providing that the first floor of the house shall not be more than four feet above the established grade line of the sidewalk. Decree from the defendant, dismissing plaintiff's petition. Affirmed.

Affirmed.

Senneff Bliss & Witwer, for appellant.

F. A Ontjes, for appellee.

GAYNOR, J. DEEMER, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

This is an action in equity to restrain the defendant from constructing a dwelling house on Lot 12, in Block 2, River Heights, Mason City, Iowa, in violation of the conditions and restrictions contained in a certain deed made by the plaintiff to the defendant, on the 28th day of April, 1911. This is the restriction: "The top of the first floor of the building must not be more than four feet above the established grade line of the sidewalk."

Plaintiff asks that defendant be required to so alter or change the construction of his dwelling house that the same, when completed, shall conform to this condition and restriction.

The plaintiff, as a basis for this prayer, alleges that on the 28th day of April, 1911, he conveyed said Lot 12 to the defendant, under a proper instrument of conveyance; that the instrument of conveyance or deed contained the above restriction; that the lot conveyed faces on River Heights Boulevard; that on this street, there are other lots occupied by others and held under deeds containing similar conditions and restrictions; that the other owners purchasing from this plaintiff have complied with the restrictions; that the plaintiff is now constructing a residence on the land immediately across the street from this Lot 12, so purchased by him from the plaintiff.

During the month of June, 1912, and after this conveyance of Lot 12 to defendant, there was constructed on River Heights Boulevard, in front of this Lot 12, a permanent sidewalk, laid on the grade given and fixed by the city engineer. On the 25th day of September, 1912, the city of Mason City passed an ordinance fixing a permanent grade line for sidewalks, practically at the place at which the sidewalk was built. After said sidewalk was put in, but before the ordinance was passed, fixing a permanent grade line for sidewalks at this point, the defendant began the erection and construction of a dwelling house on his lot facing River Heights Boulevard, with the front line of the sidewalk, dwelling house twenty-four feet from the inner line of the sidewalk, and the first floor at an elevation exceeding four feet above the grade line of the walk fixed as aforesaid; that this was a violation of the conditions of the deed.

Defendant's answer is practically a general denial, except that he admits the execution of the deed with the condition or restriction therein contained.

We attach hereto a plat of that portion of the property in controversy, which shows the location of Lot 12 now in dispute, the streets abutting thereon, and the location of the house.

So far as the controversy here is involved, there is no dispute in the facts, or practically none.

The house faces on River Heights Boulevard. With reference to the points of the compass, the house faces northwest. In speaking of it hereafter, we will speak of it as if facing north, with the rear end to the south. The northeast corner of the lot is 5 ft. 7 1/2 in. above the sidewalk as laid. The northwest corner of the lot is 2 ft. 11 in. above the sidewalk, showing that the lot slopes to the west and showing that there is a difference in elevation of 2 ft. 8 in. between the northeast corner and the northwest corner of the lot. At a point opposite the northeast corner of the house, in a straight line to the sidewalk, the elevation above the sidewalk is 5 ft. 4 1/2 in. A point opposite the northwest corner of the house in a straight line with the sidewalk is 4 ft. 3 1/2 in., showing a difference in elevation between the northeast corner of the house and the northwest corner of the house of 1 ft. 1 in. There is a difference in elevation between the northwest corner and the southwest corner of the lot of 1 ft. 1/2 in.

[SEE PLAT IN ORIGINAL]

In speaking of these elevations, we have reference to the first floor of the house. The house was constructed about five or six feet from the east line. That would be the west line of Lot 13. The difference between the elevation of the floor of the house and that of the average grade of the sidewalk around Lot 12 is 3 ft. 5 in. The top of the first floor is approximately two feet higher than the top of the sidewalk, five feet north of the southwest corner of Lot 12. The floor of the house is approximately 4 ft. 11 in. above a point on the sidewalk on a line drawn directly through the middle of the house.

At the time defendant purchased this lot there was no sidewalk in front of it. There was, however, a sidewalk on the east side of what is shown on the plat as Park Place Street up to Lot 12, and extending about five feet over in front of Lot 12. This sidewalk was then at grade. The floor of the house is 1 ft. 11 in. above this five feet of sidewalk at the southwest corner of Lot 12.

The sidewalk in front of Lot 12 was built about the 18th day of June, 1912. The city engineer gave the builder of the sidewalk the grades at all points, and it was practically constructed at the grades fixed by him. This Lot 12 faces both on River Heights Boulevard and on Park Place Street. It has fifty-three and one-half feet frontage on the boulevard and fifty feet frontage on Park Place Street. The square in the plat, herein set out, represents the position of the foundation of the house,--that is, the main part of the house without the porches.

The house in question was built for the defendant by one Steinberg. The construction of the house was started the latter part of July. The carpenter work was started about the 12th of August. The basement of the house is about 7 ft. 2 in. below the joists of the first floor. There is a hot water heating plant in the building. The pipes pass from the furnace leading to different parts of the house. The boiler is located near the center of the building in the basement. The pipes come out of the top of the boiler and run across under the floor within a few inches of the joists. These are four-inch pipes.

Steinberg testified that he commenced the carpenter work on the house on the 12th day of August. On the 17th of August, he stopped work because there was notice served that there would be an injunction asking a change in the height of the foundation of the house. He started work again on the 28th day of August. Work of a permanent nature, such as might interfere with the lowering of the house, was started about October 10th.

The first proposition relied upon by the plaintiff involves the right to maintain an action of this sort in equity. Of this, there can be no serious controversy. As said by the Massachusetts court in Codman v. Bradley, 201 Mass. 361, 87 N.E. 591, in speaking of a condition similar to the one here under consideration: "It created a right enforceable in equity against all persons taking with notice of it, actual or constructive, and this equitable right is in the nature of an easement, even if it rests on no broader principle than that equity will enforce a proper contract concerning land, against all persons taking with notice of it."

In Pomeroy Equity Jurisprudence, Vol. 4, 3d Ed., at Sec. 1341, we find the following: "An injunction restraining the breach of a contract is a negative specific enforcement of that contract. . . . Where the agreement stipulates that certain acts shall not be done, an injunction preventing the commission of those acts is evidently the only mode of enforcement. . . . A clearer notion of the doctrine will perhaps be obtained by considering the contracts to which it applies, in three main classes", among which we find cited those restrictive covenants which create equitable easements.

In Sec. 1342 of the same work, the author says: "The injunction in this class of cases is granted almost as a matter of course upon a breach of the covenant. The amount of the damages, and even the fact that the plaintiff has sustained any pecuniary damage, are wholly immaterial. In the words of one of the ablest of modern equity judges 'it is clearly established by authority that there is sufficient to justify the court in interfering, if there has been a breach of the covenant. It is not for the court, but the plaintiffs, to estimate the amount of damages that arises from the injury inflicted upon them. The moment the court finds that there has been a breach of the covenant, that is an injury, and the court has no right to measure it, and no right to refuse to the plaintiff the specific performance of his contract, although his remedy is that which I have described', namely, an injunction."

See also Devlin on Real Estate, Vol. 2, 3d Ed., Sec. 990-e, in which it is said: "Frequently an owner of a tract of land who desires to cut it up into lots for building purposes, inserts in the deeds of sale building restrictions as a part of a general plan for the improvement of the whole tract. When uniform restrictions as to the purposes for which the lots may be used are inserted in the deeds, these provisions inure to the benefit of the several grantees . It is, however, essential to ascertain the purpose of the grantor in the imposition of these restrictions. They may be made...