Peterson v. Gales

• Decision Date: 12 October 1926
• Citation: 210 N.W. 407,191 Wis. 137
• Parties: PETERSON ET AL. v. GALES.
• Court: Wisconsin Supreme Court

191 Wis. 137

210 N.W. 407

PETERSON ET AL.

v.GALES.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Harry Peterson and another against Arthur C. Gales, wherein defendant impleaded, and filed cross-complaint demanding damages of, Elizabeth Owen and Grace E. Miller and another, copartners, doing business as the Belle City Abstract Company, and wherein Elizabeth Owen also filed cross-complaint against the Abstract Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for further proceedings.--[By Editorial Staff.]Thompson, Myers & Helm, of Racine, for appellant.

Beck, Smalley & Smith, of Racine, for respondents.

Carl N. Hill, of Madison, James H. Hill, of Baraboo, and Hand & Quinn, of Racine, for interpleaded respondents.

OWEN, J.

This action was brought to restrain the defendant, Arthur C. Gales, from erecting on lot 20 of block 2 of Owen's subdivision to the city of Racine a building in violation of a restrictive covenant affecting the use of said lot. A partition deed between the heirs of the proprietor of said subdivision contained the following covenant:

“It is also agreed, and all the parties hereto agree, not to build on Owen avenue any house with a foundation wall nearer than 24 feet from the street line. Also not to build on said avenue any house costing less than $1,500. * * * Also agreed that agreements, covenants, and conditions herein mentioned shall be binding on the parties hereto, their heirs, executors, administrators, and assigns.”

On December 2, 1924, the defendant, Gales, purchased the lot in question from Elizabeth Owen, who executed to him a deed containing full covenants of warranty. The purchase price was $2,300 for the vacant lot. He thereafter proceeded to erect on said lot a machine shop, in disregard of the terms of said covenant requiring the foundation wall of buildings to be kept 24 feet from the street line. Plaintiffs own the lots adjoining defendant's (Gales') lot. They brought this action to restrain him from building the machine shop on said lot, or from building any building thereon having its foundation wall closer than 24 feet from the street line. Upon learning of the existence of this covenant, defendant abandoned his plan of building his machine shop flush with the street line on Owen avenue, but remodeled his plans, and did proceed with the construction of a machine shop, the foundation wall of which was not nearer than 24 feet from said street line.

The trial court held that the restrictive covenant prohibited the erection of any building other than a residence upon the property in question, and prohibited the erection of any residence having its foundation wall nearer than 24 feet of Owen avenue, and rendered judgment restraining the defendant, Gales, from erecting or using any building on said lot in violation of such covenant as so construed.

[1][2] It will thus be seen that the lower court held, as the appellant, Gales, here contends, that the language of the covenant above quoted restricted the use of the property affected to residential purposes. It is well settled that such covenants are strictly construed in favor of the free use of the premises for all lawful purposes. Roberts v. Gerber, 187 Wis. 282, 202 N. W. 701;Schneider v. Eckhoff, 188 Wis. 550, 206 N. W. 838. There is nothing in the covenant here which restricts the premises to any particular use. It is merely provided that no house shall be built “with a foundation wall nearer than 24 feet from the street line.” There is nothing said about the use to which the lots may be devoted, nor is there anything in the covenant limiting buildings thereon to family residences. It would require a strict construction to limit the word “house,” as used in the restrictive covenant, to a family residence. The word “house” is “an ambiguous word with various meanings, dependent upon, or made evident by, the purpose of the parties and the subject matter of the instrument.” 30 Cor. Jur. p, 472. A consideration of the authorities cited in support of this proposition indicates that the word “house” has been variously construed to include every sort of a building from a mansion to a corncrib, and has been even held to include a boat, a camp, and a covered wagon drawn from place to place. It may be said, therefore, that the word “house” is an all-inclusive word, and may include any and every kind of a structure, dependent upon the context in which it is used and the purpose sought to be effected.

[3] It is argued upon the part of the respondents Peterson that the manifest purpose of the restrictive covenant was to restrict the use of the property to residential purposes, and that, if such construction is not given to the covenant, then it is absurd and futile. Of course, it should be assumed that some object was sought to be accomplished by virtue of the covenant, and we should hesitate to give the covenant a construction meaning nothing at all. However, it is apparent that the covenant does accomplish a quite usual and beneficial purpose. It does establish a building line 24 feet from the curb, thus preserving to the occupants of the lots a view, and securing to them light and air. This is an object which is very often accomplished by the use of restrictive covenants of this nature. Schneider v. Eckhoff, 188 Wis. 550, 206 N. W. 838. No other meaning can be given...