Minner v. City of Lynchburg

• Decision Date: 04 March 1963
• Docket Number: No. 5535,5535
• Citation: 204 Va. 180,129 S.E.2d 673
• Parties: DONALD A. MINNER, ET AL. v. CITY OF LYNCHBURG, ETC., ET AL. Record
• Court: Virginia Supreme Court

Page 673

129 S.E.2d 673

204 Va. 180

DONALD A. MINNER, ET AL. v. CITY OF LYNCHBURG, ETC., ET AL.

Record No. 5535.

Supreme Court of Appeals of Virginia

March 4, 1963.

Edward R. Feinman, for the appellants.

William Rosenberger, Jr. (C. Shepherd Nowlin, City Attorney, on brief), for the appellees.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

This suit was instituted by the appellants, Donald A. Minner and others, owners of twenty-one lots in the Manton Wood subdivision in the city of Lynchburg, against Louise G. Raphael, Sidney A. Goodman, A. Leonard Goodman, and Fannie G. Ries, heirs of Emanuel Goodman, deceased, developers of the subdivision and hereinafter referred to as the Goodman heirs; the city of Lynchburg; John Stewart Walker, Inc., and George C. Walker, agents for the Goodman heirs; and George C. Walker, Ione McK. Walker, Gertrude Cook and Otto Cook, owners of real property adjacent to the subdivision; seeking to have the uniform restrictions contained in their deeds, or the deeds of their predecessors in title, and in all other deeds to lots in the subdivision declared binding upon lot 31, which is unsold and still owned by the Goodman heirs, and upon a 50-foot strip of lot 13, conveyed by the Goodman heirs to the city of Lynchburg for use as a public street to the adjoining property. They also sought injunctive relief against the city of Lynchburg and the owners of the adjacent property from the use of the 50-foot strip of lot 13.

The chancellor sustained demurrers filed by agents of the Goodman heirs and the owners of the property adjacent to Manton Wood and the bill was dismissed as to them. They are not parties to this appeal. A demurrer filed by the city was overruled and it thereupon filed its answer to the appellants' bill of complaint.

The Goodman heirs, being non-residents, were duly proceeded against by an order of publication but they made no appearance in the court below or here.

After an ore-tenus hearing on the merits the chancellor held, in a written opinion, that the restrictions in appellants' deeds, or of their predecessors in title, and in the deeds to other lots in the subdivision were not binding on lot 31, which was retained by the Goodman heirs, and upon the 50-foot strip of lot 13 conveyed to the city of Lynchburg for use as a public street; that the deed to the city contained no restrictions against its use as a street and the city had neither actual nor constructive notice that it could not be so used; that the evidence showed that representations were made by an agent of the Goodman heirs to two purchasers of lots in the subdivision that no street would be opened across lot 13, but the representations were oral promises purporting to create an interest in real property and were not enforceable under the statute of frauds (§§ 11-1 and 11-2, Code of 1950, 1956 Replacement Volume; § 55-2, Code of 1950, 1959 Replacement Volume); and that to enjoin the city from constructing a street over the 50-foot strip would 'be a futile thing * * * and benefit no one' because the city could condemn it for street purposes under its power of eminent domain.

From the decree dismissing appellants' bill and denying the injunction we granted appellants an appeal.

The appellants contend that the chancellor erred (1) in not holding that the Goodman heirs adopted a general plan or scheme of development of Manton Wood and that it was their intent to insert uniform restrictions in all their deeds of conveyance, which would be for the mutual benefit of all the owners of the lots in the subdivision, and that the purchaser of each lot acquired a right to have substantially the same uniform restrictions contained in his deed imposed upon all the lots retained by the Goodman heirs, or by a grantee from them who took title with notice, actual or constructive, of the general plan and the uniform restrictions; (2) in holding that the city of Lynchburg did not have actual or constructive notice of the general plan of development and of the uniform restrictions; (3) in holding that the statute of frauds barred them from the relief sought; and (4) in not enjoining the city of Lynchburg from constructing a street over the 50-foot strip of land.

On the other hand, the city says that the restrictions were limited to and applied only to the particular lot 'hereby conveyed'; that they were for the sole benefit of the Goodman heirs; and that the oral promises of the agents of the common grantor were merely sales talk, made without authority, and were unenforceable under the statute of frauds.

In 1937 the Goodman heirs owned a tract of land containing approximately 25 acres bordering on Link road in the city of Lynchburg, which they, under the supervision of their agents, John Stewart Walker, Inc., and George C. Walker, subdivided into thirty-one residential lots, which subdivision they named 'Manton Wood.' A plat of the subdivision was recorded on August 14, 1937, and an amended plat, with only negligible changes, was recorded on May 11, 1938. Both plats showed a 'Y' shaped street with the principal part designated as Manton drive. The arms of the 'Y' connected with Link road, and Manton drive terminated at the base of the 'Y' in a dead-end circle in front of lot 13. The street did not extend to any adjacent land, nor did the plats show provision for any future street to connect Manton drive to the adjoining land. There were three provisions written on these plats relating to building line restrictions only.

After recording the amended plat, the Goodman heirs proceeded to sell the lots and at the time this suit was instituted they had sold all except lot 31. With negligible exceptions in their first three deeds and the deed conveying to the city of Lynchburg the 50-foot strip reserved from lot 13, all the deeds from the Goodman heirs contained the uniform covenants and restrictions set out in their deed of July 18, 1940, to Irene J. Tucker, hereinafter referred to as the 'Tucker restrictions.'

The Tucker restrictions limited the use of the property conveyed to residential purposes and there were eight other provisions. The other restrictions and covenants here material are these:

'7. That no street, avenue, alley or thoroughfare of any sort to be used by the public shall be laid out through or upon any portion of the lot hereby conveyed.

* * *

'9. That all of the covenants and agreements above expressed shall be held to run with and bind the real estate hereby conveyed and subsequent owners and occupants thereof until January 1, 1999, and the acceptance of this deed shall have the same force and binding effect upon the party of the second part, her heirs, personal representatives and assigns, as if this deed was signed and sealed by the party of the second part, provided that any of the covenants, agreements and restrictions contained herein shall at any time and in any manner be changed with the mutual consent in writing of all of the owners of all of the lots shown upon the plat heretofore referred to.'

When the lots were first offered for sale newspaper advertisements referred to Manton Wood as a 'restricted community.'

On December 3, 1941, the city of Lynchburg, holder of a lien on lot 18 in Manton Wood as security for the performance of a contract for the construction of two sewer mains in the subdivision, joined in a deed with the Goodman heirs, owners of lots, and others having liens on property in the subdivision to release a particular violation of the restriction against building more than one residence on each lot.

In a deed from the Goodman heirs dated April 9, 1943, releasing the requirement of submitting building plans and specifications for approval by their agent, which was required by the restrictions in the first deed conveying lot 9, it was stated that the provision was eliminated because they did not deem it any advantage to themselves or the subdivision.

In 1951 the city of Lynchburg, through its city manager, recognized that there was a possibility that the lands adjacent to Manton Wood would be developed and the interest of the city might be affected, and inquired of the city attorney whether Manton drive could be extended across lot 13 to the adjoining tracts of land.

In a letter dated February 9, 1951, addressed to the city manager, a copy of which was sent to the city's director of public works, the city attorney advised that there were no restrictions on the plats of Manton Wood which would prevent a street from being constructed over any of the lots. He quoted restriction No. 7, and stated that although it had been placed in the deeds to all the lots sold, in his opinion it applied only to the lot conveyed in each deed and did not apply to any of the unsold lots, and that the proposed street could be placed entirely on lot 13 as it was still owned by the Goodman heirs.

The city attorney's letter did not mention the covenants and agreements contained in No. 9 of the Tucker restrictions, which appeared, with only negligible exceptions in the first three deeds, in all of the conveyances by the Goodman heirs.

On October 30, 1952, the Goodman heirs, by deed incorporating the Tucker restrictions, conveyed lot 13 to Frank B. Wright, Jr., but expressly reserved and excepted from said lot a strip 50 feet wide adjacent to lot 14 'with the right to use or dedicate said strip for a right of way into adjoining property or for any other purpose consistent with' the Tucker restrictions. Prior to this reservation twenty of the thirty-one lots in Manton Wood had been sold subject to the uniform restrictions.

On May 5, 1958, pursuant to an agreement between the Goodman heirs, the city of Lynchburg, and the owners of lands adjacent to Manton Wood, George C. Walker, et ux., and Gertrude Cook, et vir, the Goodman heirs conveyed to the city of Lynchburg the 50-foot strip of land reserved from lot 13. This 50-foot strip was to be used by the city for a...