Pulver v. Mascolo
| Decision Date | 19 December 1967 |
| Citation | 237 A.2d 97,155 Conn. 644 |
| Court | Connecticut Supreme Court |
| Parties | Royal F. PULVER et al. v. James MASCOLO et al. |
Henry B. Maretz, New Haven, with whom, on the brief, was Alfonse C. Fasano, New Haven, for appellants (plaintiffs).
David B. Cohen, Derby, for appellees (defendants).
Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.
In this action, the plaintiffs seek an injunction to restrain the defendants from constructing on the defendants' property a small outbuilding to contain the filtering equipment for a swimming pool, bathhouse facilities and toilet facilities in violation of a restrictive covenant. The case was submitted on a stipulation of facts. The trial court rendered judgment for the defendants, and the plaintiffs have appealed to us.
In the late 1940's, and into the 1950's, The Berner Lohne Company, Inc., hereinafter referred to as the company, owned a certain tract of land in the town of Orange known as Green Hill Acres. It proceeded to develop the land for sale and, through the years which followed, sold some lots and also sold some houses which it built on some of its lots. In all of the sales transactions, the company had the following provision inserted in its deed of conveyance: 'Said premises are conveyed subject to the following restriction: that said lot is to be used solely and wholly for residential purposes; that only a one-family house to cost not less than $7500 shall be erected or maintained on said lot; that no board fences shall be erected on said lot, but nothing herein shall be construed so as to prevent the erection of a private garage on said lot for the use of the owners or occupants of such dwelling house to accommodate not more than three cars, which garage, however, must be attached to and be a part of the dwelling; no chicken coops or chickens are to be permitted or kept on said premises, all construction plans and specifications of any building to be erected thereon shall be first submitted to and be approved by The Berner Lohne Co., Inc., its successors and assigns, failure to approve or disapprove such plans within 30 days after the same have been submitted, then such approval shall not be required; the completion construction in 30 days shall be construed prima facie evidence of approval.'
As of some years ago, and prior to the commencement of this action, the company had completely disposed of all of its lots in the Green Hill Acres development. The plaintiffs acquired their property on March 17, 1960, from Gudolf M. and Martha Poverud, who had acquired title to it from the company on May 16, 1951. The deed from the company to the Poveruds contained the convenant recited above, and the deed from the Poveruds to the plaintiffs specifically referred to the covenant.
The defendants acquired their property on or about November 13, 1964, from one Donat, who had acquired it from one Elston on March 13, 1956. Elston had purchased the property from the company. All deeds in the defendants' chain of title contained either a full recitation of the covenant or a specific reference thereto. In 1965, the defendants constructed a swimming pool at the rear of their property. After completing the pool, the defendants commenced to build a small structure to house and contain the filtering equipment for for pool, bathhouse facilities and toilet facilities. This structure was located to the rear of the pool and was not attached to the main dwelling. The defendants voluntarily stopped construction on the unattached outbuilding when the issue was raised by certain of their neighbors that the defendants had not submitted the plans for it to the company or obtained its prior approval. At a conference held at the request of the defendants at the offices of counsel for the company, the defendants stated that they would voluntarily cease construction and would not continue with it without previous consultation with the company. In the early part of 1966, the defendants communicated with the company relative to the commencement of work on the proposed structure. The company informed the defendants that it had no interest in, or concern with, the proposal, that it no longer owned property within the tract, and that it had no interest in whether construction was commenced or stopped. In a letter, the company expressed its disinterest in enforcing the restrictive covenant.
Although the defendants were aware that the plaintiffs objected to the proposed construction, they commenced work on it. The outbuilding in question was a small, white wooden structure well removed from the plaintiffs' house.
The trial court concluded that the covenant in the deed was personal to the company, the original grantor, that it alone has the right to enforce or waive the restriction, that the defendants have complied fully with the requirements of the restriction, that the defendants have received 'complete absolution' from the company, and that it would be impractical or impossible for the defendants to obtain permission from all the succeeding property owners in the area. Judgment was rendered for the defendants. The plaintiffs assign error in the failure of the trial court to conclude that the restrictive covenants run with the land, that they are in the nature of negative or equitable easements enforceable by the grantees against each other, and that the plaintiffs, as the successors and assigns of the company, may enforce the covenants.
The covenant presents two basic questions: (1) Does it prohibit the erection of the outbuilding in question? (2) Does the portion of the covenant which requires submission to, and approval by, the company of all construction plans and specifications for any building to be erected enure to the benefit of the plaintiffs, or is it, as found by the trial court, personal to the company?
It is clear that the use of the property is restricted to residential purposes, that the only house which may be erected or maintained thereon is a one-family house to cost not less than $7500, and that an attached garage for not more than three cars for the use of the owners or occupants of the house is permitted. The covenant expressly prohibits the erection of board fences and chicken coops and the keeping of chickens on the premises. The erection of no other type of building is expressly prohibited. The plaintiffs claim that the phrase 'only a one-family house * * * shall be erected or maintained' was intended to prohibit the erection on the premises of any other building except an attached garage rather than to limit the form, decign and use of the structure. If this were so, there would be no necessity for the specific prohibition of chicken coops. Had it been the intent of the parties to prohibit the erection of any other building or outbuilding, they would naturally have so specified in this...
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