Osius v. Barton

• Decision Date: 26 April 1933
• Parties: OSIUS et al. v. BARTON et al.
• Court: Florida Supreme Court

147 So. 862

109 Fla. 556

OSIUS et al. v. BARTON et al.

Florida Supreme Court

April 26, 1933

En Banc.

Suit by Carrie Ilko Barton, a widow, and others, against Mary D Osius, a feme sole, and another. From an order adjudicating the insufficiency of a cross-bill and sustaining a general and special demurrer thereto and striking certain portions thereof, the defendants appeal.

Order affirmed in part, and reversed in part and cause remanded with directions. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

James M. Carson and Ross Williams, both of Miami, for appellants.

S. P. Robineau, of Miami, and William W. Muir, of Miami Beach, for appellees.

OPINION

DAVIS Chief Justice.

This is an appeal in equity from an order adjudicating the insufficiency of a cross-bill and sustaining a general and special demurrer thereto and striking certain portions of the same.

The original bill alleged that the Alton Beach Realty Company, in pursuance of a general plan of developing and subdividing certain described property of which it was the owner, and for the general and common benefit of each and every lot located in its subdivision, which was being developed as a high-class residential property, did in and by its conveyances of parcels thereof, fix and establish certain restrictions upon said property, binding upon purchasers of lots in same, which restrictions it was intended should and would become covenants running with the separate parcels of the subdivided land, the assumption and compliance with said covenants by future grantees being made express consideration for the grants thereof; that amongst the restrictions incorporated in conveyances executed according to said plan of development were restrictions to the effect that no house structure, or building to be used as a business room, storage house, manufacturing establishment, machine shop, or for any other business or commercial purpose whatsoever, should be constructed, erected, or placed on any of the lots situate in said subdivision, and that no business or commercial enterprise whatsoever should be operated or maintained thereon; that notwithstanding the restrictions aforesaid running with the land, and binding upon the defendants Frederick J. Osius and Mary D. Osius, because of their acquisition of title to certain lots in said subdivision in subservance to said restrictions, that said defendants in definance and disregard of said restrictions, and in breach of the covenants providing for the same, had rented, leased, and demised their certain dwelling house situate on their said lots, for use as a beauty parlor for the purpose of conducting a commercial business thereon under the name of 'Louise's Beauty Saloon'; that defendants had boasted of their said act as having been done with intent to breach the said covenants; that the breach of the said restrictions was irreparably damaging the complainants as lot owners in the said subdivision; that complainants were entitled to enforce said covenants as covenants running with the land and that in order to do equity, the court should grant to complainants an injunction enjoining and restraining the further conduct of said business known as 'Louise's Beauty Saloon' in violation of said covenants; and that in addition thereto the Court should issue its mandatory injunction ordering the defendants to remove all furniture, fixtures, and paraphernalia of said business or commercial enterprise from the property involved.

The defendants answered and filed in connection therewith a cross-bill seeking affirmative relief against the alleged restrictive The court sustained the sufficiency of the answer, but denied the sufficiency of the cross-bill. So the proposition presented by this appeal is whether or not there is any equity in the cross-bill, and, if so, was the cross-bill subject to the special demurrer to certain paragraphs, and to the motion to strike certain paragraphs by way of exception thereto.

The record shows that the deed under which defendant Frederick J. Osius claimed title to his property was executed in December, 1921, and contained the restrictive covenants hereinbefore mentioned. It is also shown that his title deeds provided as follows: "All the conditions, covenants, stipulations and agreements, and each and every of them herein contained, are to have the effect of covenants running with the lands, * * * and the grantee, his heirs and assigns, by the execution, delivery and acceptance of this deed, each severally binds himself, his successor or successors, and assigns, to perform, fulfill, abide by and carry out each and every of said covenants, stipulations, and agreements, and further and at all times to acquiresce in the intent of the above grantor and the grantee to make, have and keep all of said covenants, stipulations and agreements as to all of the parcels of land included within the boundaries and shown upon the recorded plat of Fisher's First Subdivision of Alton Beach, and the successive owners thereof while in possession, but not in perpetuam, covenants, running with the land, and especially that the strip or parcel of land lying between the Atlantic Ocean and the private road running along the east said of Blocks 1, 28, 29, 55, 56 and 77 as shown by said plat, shall be used only for landscape purposes and to preserve the view of the Ocean from the landward unobstructed except for the beautification by trees or shrubbery, and that no buildings of any kind or nature shall ever be erected thereon or on any accretions of and thereto by reason of the recession of the waters of the Atlantic Ocean; and this covenant shall inure to the benefit of and be enforceable by the owner of any parcel of real estate contained in and subdivision aforesaid, his legal representatives, heirs, successors, and assigns, as well as by the said Alton Beach Realty Company, and the failure of said Alton Beach Realty Company or by any owner, however long continued, to object to any violation of or to seek in court the enforcement of any one of said covenants or of this covenant, shall in no event be deemed a waiver of the right of any other lot-owner or any successor in title to any lot in said subdivision, to object and sue to abate, prevent, remove or restrain any breach of the same breach or as to any breach occurring prior or subsequent thereto."

The original bill rested upon the theory that complainants, as owners of the dominant estates, were entitled to enforce the restrictive covenants inuring to their benefit, by restraining the operation of any business or commercial enterprise on the north half of lot 4, and lots 5 to 18 of block 54 of Fisher's subdivision of Alton Beach, as to which it was claimed that there was only one restriction or covenant running with the land involved in complainants' case, that is, the restriction against the operation of business or commercial enterprises. The complainants, Shepard and Morris, traced their title to their property in the subdivision through the Osius deed back to Alton Realty Company, while the other complainants did not.

The theory of complainants' original bill is therefore that since the entire Fisher's First subdivision of Alton Beach was originally (with certain exceptions not necessary to be stated) restricted in use to single family, private residential dwelling houses, with an inhibition against the use of any of the lots here involved for business or commercial purposes, which restrictions were carried forward into the deed to Frederick J. Osius upon which his title rests, that complainants, as fee-simple owners of lots located in Fisher's First subdivision of Alton Beach, are entitled to enforce the restrictions by equitable proceedings, inasmuch as the restrictions sought to be enforced are, by their terms, covenants running with the land.

On the other hand, the theory of the defense is that the restrictions sought to be enforced are unenforceable because the company originating them never had any definite plan for subdivision, but has followed a plan flexible and subject to change from time to time; that the restrictions outstanding against the lots are indefinite, uncertain, and in irreconcilable conflict; that the restrictions themselves have been so changed, modified, and in effect abandoned from time to time as to have become practically abrogated; and that in addition to all the foregoing, the restrictions, if they ever were valid and enforceable to begin with, have since been nullified by reason of substantial changes in the locality which have rendered them no longer applicable.

The theory of the cross-bill is that since the legal effect of the restrictions relied on ought to be in equity adjudged as having become terminated, they should also be ordered removed as a cloud on cross-complainants' title and canceled of record, in addition to a decree denying any enforcement thereof to the original complainants.

The general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benfit of the one seeking to enforce them. The violation of a restrictive covenant creating a negative easement may be restrained at the suit of one for whose benefit the restriction was established, irrespective of whether there is privity of estate or of contract between the parties, or whether an action at law is maintainable. The action of a court of equity in such cases is not limited by rules of legal liability and does not depend upon legal privity of estate, or require that the parties invoking the aid of the court should come in under the covenant, if they are otherwise interested. The rule is well established that where a covenant in a deed provides against certain uses...