Moore v. Stevens

• Decision Date: 19 December 1925
• Citation: 106 So. 901,90 Fla. 879
• Parties: MOORE v. STEVENS.
• Court: Florida Supreme Court

106 So. 901

90 Fla. 879

MOORE v. STEVENS.

Florida Supreme Court, Division B.

December 19, 1925

Suit for injunction by Florence Stevens against Homer Moore. Decree for complainant, and defendant appeals.

Affirmed.

Ellis and Buford, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Covenants restricting use of real property will be enforced, if intention of parties is clear and restrictions are within reasonable bounds, unless rights created thereby have been relinguished or otherwise lost. Covenants restraining the free use of real property, although not favored, will nevertheless be enforced by courts of equity, where the intention of the parties is clear in their creation, and the restrictions and limitations are confined to a lawful purpose and within reasonable bounds, unless the rights created by such covenants have been relinquished or otherwise lost.

Covenants restricting use of land are strictly construed; in construing covenant restricting use of land, controlling factor is expressed intent of parties; intent unexpressed in restrictive covenants is unavailing, and substantial ambiguity or doubt must be resolved against persons seeking to enforce them. Covenants restraining the use of real property are strictly construed in favor of the free and unrestricted use of such property. Due regard must be had for the purpose contemplated, as well as the circumstances surrounding the transaction, but in construing such a covenant the controlling factor is the expressed intent of the parties. Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenants.

Use of land, restricted by covenant to residence purposes only, as vocal school will be enjoined. The use of a building as a vocal studio, where an average of from 36 to 45 pupils per week are received and given singing lessons by the occupant of the premises, which lessons are given in half-hour instruction periods extending at intervals throughout the day and sometimes into the early evening, five days per week consuming an average aggregate time of from three to four hours per day, and where vocal choruses are also sometimes trained, a substantial remuneration being charged by the occupant of the premises for his services as teacher, which remuneration is his principal source of livelihood, will be enjoined in an appropriate action as a violation of a covenant which provides that the lot upon which such building stands 'is to be used for residence purposes only,' even though the building be also occupied as his settled place of residence by the teacher who conducts the singing lessons. Appeal from Circuit Court, Hillsborough County F. M. Robles, judge.

COUNSEL

Mabry Reaves & Carlton, or Tampa, for appellant.

Charies F. Blake, of Tampa, for appellee.

OPINION

STRUM J.

Appellant, Homer Moore, who was defendant below, is the owner of lot 1, of block 2, of Lingerlong subdivision, situate in the city of Tampa. Title to said lot is held by appellant subject to the following provisions contained in an antecedent conveyance in his chain of title and by reference made a part of the deed by which appellant acquired title:

'As part consideration for the purchase price of said property said party of the second part hereby covenants and agrees as follows:

'That this conveyance is made by the parties of the first part and accepted by the party of the second part under an agreement that the property hereby conveyed is to be used for residence purposes only; that only one residence shall be erected on each lot, and said residence shall face East and shall not cost less than $3,000.00 but the owner of said lot may have the necessary servant and outhouses on the rear of said lot; that the building line of said lot shall not be twenty feet or more from the front of said lot; that no liquor or ardent spirits are to be sold upon said property; that said property shall never be rented, sold or otherwise disposed of to persons of African descent; that no use shall be made of said property or any part thereof that would constitute a nuisance or injure the value of any neighboring lot.'

Appellee, Florence Stevens, who was complainant below, is the owner of lot 6, block 2, of said subdivision, which lot is located near the lot owned by appellant. Appellee holds title to her lot subject to the same restrictive covenants above quoted, which covenants, or covenants of similar import, were included in many (if not all) of the deeds by which lots in said subdivision were conveyed by the owners of the subdivision to the original purchasers of lots therein.

Appellee, as complainant below, brought her bill of complaint against appellant, asserting that the latter was violating the restrictive covenants imposed upon his title to said lot 1 by using a building erected by him upon said premises for the purpose of conducting a vocal studio to which numerous persons came from day to day to receive singing lessons under the teaching of appellant. The bill prayed that appellant be enjoined from further using said premises in the manner stated.

Appellant answered, in effect denying all material allegations of the bill, except ownership of the property, and claimed an estoppel against complainant by reason of the acquiescence of the latter in the continued breach by other lot owners of the covenant 'that only one residence shall be erected on each lot,' and further averring a waiver of all the covenants above quoted by reason of a general disregard and breach thereof, acquiesced in by complainant and other lot owners.

Upon consideration of the pleadings and evidence, the chancellor entered a final decree perpetually enjoining appellant from 'appropriating or applying' the premises owned by the appellant 'to the purposes of a vocal studio, or any similar use, by whatever name called or known, and from all use or application of said lot, or the building thereon, or any portion of same, for any purpose whatsoever except that of 'residence purposes only,' and that in the ordinary common acceptation of that term.' From that decree this appeal was taken.

The evidence discloses that appellant, by profession, is a teacher of vocal music and earns his living principally by following that avocation. In 1920, appellant erected a two-story house on his lot in Lingerlong subdivision, the plans for which were drawn by himself. The house so built has two large rooms and a lavatory downstairs, four rooms and bath upstairs, and a porch upstairs and downstairs. The downstairs rooms are designated by appellant as a reception room and music room, the former about 10 feet square, the later about 34 feet long and 23 feet wide, the ceiling of both rooms being 12 1/2 feet high. The entrance to the house is between the reception room and music room. There is no kitchen on the ground floor, but bathroom and kitchen are located on the second floor. There is a porch out beyond the kitchen door on the second story, and stairs leading from said porch down into the yard on the outside of the house. The character of the other upstairs rooms is not clearly disclosed by the evidence, though the inference therefrom is that they are perhaps bedrooms; nor does it appear whether or not there is a stairway inside the house. Appellant lives in the house with his wife. It is his usual place of residence. Besides using the lower floor for the purpose of giving vocal lessons, it is the only part of the house in which the appellant and his wife entertain any persons except their most intimate friends; it being the only part of the house adequate for social functions.

In this house appellant, as teacher, conducts singing lessons beginning on some days at about 7:15 o'clock a. m. and on other days at 8 to 9 o'clock a. m., and continuing, intermittently, through the day until about 8 o'clock p. m., when the lessons customarily cease. Sometimes students are taught between 8 p. m. and 9:15 p. m., though this is not the usual custom. Usually, appellant gives only individual lessons, but 'at odd times' he trains choruses. One chorus was trained by him over a period of six to eight weeks, the lessons being given one night each week, ceasing about 9:15 p. m. On other nights, rehearsals were held in the building, being discontinued shortly before 10 o'clock p. m. Within the limits of time above stated. appellant was willing to instruct as many acceptable pupils as his health and strength would permit. He had given as many as 20 lessons per day, this, however, being unusual. The average number of pupils taught ranged from about 45 a week, when the studio was originally opened, to about 36 a week, when the testimony in this suit was taken, the number of lessons deereasing because of prosecutions instituted against appellant in the municipal court of Tampa. Appellant teaches on each day of the week, except Sunday; lessons on Saturday, however, being infrequent and not ordinarily given. Each individual lesson extends over a period of one-half hour, and appellant charges therefor the sum of $3.50. Appellant testified that he had taught singing lessons in Tampa and elsewhere for about 40 years, and that it was the custom in the city of Tampa and elsewhere for professional singing teachers to give lessons and conduct their classes in the home of the teacher.

The evidence does not sustain appellant's contention advanced in his answer below, that appellee is estopped to insist upon an observance of the restrictive covenants, or that there has been a waiver thereof. Schadt v. Brill, 173 Mich. 647, 139 N.W. 878, 45 L. R. A. (N. S.) 726; Sayles v. Hall, 210 Mass. 281, 96 N.E. 712, 41 L. R. A. (N. S.) 625, Ann. Cas. 1912D, 475; Brown v. Huber. ...