Reid v. Standard Oil Co. of Ky., 39834

• Decision Date: 12 February 1963
• Docket Number: No. 1,No. 39834,39834,1
• Citation: Reid v. Standard Oil Co. of Ky., 130 S.E.2d 777, 107 Ga.App. 497 (Ga. App. 1963)
• Parties: Frances W. REID et al. v. STANDARD OIL CO. OF KENTUCKY, Inc., et al
• Court: Georgia Court of Appeals

Page 777

130 S.E.2d 777

107 Ga.App. 497

Frances W. REID et al. v. STANDARD OIL CO. OF KENTUCKY, Inc., et al.

No. 39834.

Court of Appeals of Georgia, Division No. 1.

Feb. 12, 1963.

Rehearing Denied March 21, 1963.

Syllabus by the Court.

1. Since as a general rule the owner of land has the right to subject it to any lawful use, limitations or restrictions thereon must be clearly alleged and proved beyond a reasonable doubt.

2. Where lots in a subdivision are sold under a general plan or scheme for the development of the tract as a whole, the general scheme binds all the purchasers inter sese, not only as to restrictions embodied in their respective deeds, but also as to such inhibitions as were embraced within the general scheme of the subdivision of which they had or were chargeable with notice. But to enforce a restriction by implication it must clearly appear to have been a part of the overall intent of the subdivider, and there must be such mutuality of interest between the owners of the various lots as to authorize the conclusion that there is a quasi covenant between them (or their predecessors in title) to restrict the land use in the manner contended.

3. Where a large tract of land is separately platted into various units, plaintiffs whose deeds contain restrictions enforceable only within the area plat to which their deeds refer cannot ordinarily urge like implied restrictions against owners of lots in a separate unit developed by another party, nor can they insist on restrictions embodied in a deed from a seller to a purchaser in such other unit which have been subsequentlu nullified by agreement between the parties to the deed, since the restrictions were not imposed for their benefit.

The plaintiffs Reid and Chisholm sought a declaratory judgment against the defendants Saye-Bishop, Inc. here referred to as the subdivider; Beechwood Development Company, and Standard Oil Company of Kentucky, Inc., praying that certain lots in Beechwood Hills subdivision be held to have been restricted to church and residence purposes only. The subdivider purchased 226 acres of land in Clarke County, Georgia, in 1956 and prepared a plan of development for residential and commercial purposes which is described as a suggested land use plat, known as the Martini plat, which was never recorded but which has been followed with minor adjustments and displayed to the public at the sales offices of the subdivider. Thereafter the land was surveyed by sections. The results of the three surveys were set out in three plats, each of which was properly and separately recorded in the office of the Clerk of the Superior Court of Clarke County. Plaintiffs purchased lots in September, 1957, and February, 1958, in the section shown by a certain plat which will be referred to as Plat 1. Their deeds restricted their land use to residential purposes and recited: 'The following restrictions are applicable to and only to the numbered lots shown in said plat.'

In February, 1957, the subdivider sold a lot appearing on another plat referred to herein as Plat 2 to the Christian Science Society of Athens, the deed containing a restriction that the lot be used for residential or church purposes only. In November, 1957, grantee deeded this lot back to the grantor, expressly canceling the restrictions contained in its deed, and took another deed with like restrictions to another lot located on Plat 2. In 1959 the restrictions on the latter deed were canceled by a recorded agreement between the parties. The subdivider has platted over 350 residential lots of which 300 have been sold. None of these lots are located in Plat 2, and Plat 2 contains no restrictions on the use of the property therein mapped out. In October, 1959, the subdivider sold the 29 acre tract of land constituting Plat 2 to the defendant Beechwood Development Company, which intends to develop the area for commercial purposes. Beechwood Development has leased a lot to Standard Oil Company for filling station purposes, this being part of the same lot deeded by the subdivider to the church and retransferred by it in 1957 with the restriction voided, and thereafter conveyed to Beechwood without restriction in 1959. The plaintiffs seek a holding that under this state of facts the land involved in Plat 2 and particularly the lot leased by Standard Oil Company is restricted to use for residential and church purposes. A general demurrer to the petition was sustained by the trial court, and this ruling was appealed to the Supreme Court, which has (Reid v. Standard Oil Co. of Ky., 218 Ga. 289, 127 S.E.2d 678) transferred the case to this court for decision.

Joseph J. Gaines, Athens, for plaintiff in error.

Erwin, Birchmore & Epting, Eugene R. Epting, Athens, for defendant in error.

RUSSELL, Judge.

1. 'As a general rule, the owner of land in fee has the right to use the property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established. Limitations or restrictions by implication are not favored, and must be strictly construed.' Thompson v. Glenwood Community Club, 191 Ga. 196(1), 12 S.E.2d 623; Jordan v. Orr, 209 Ga. 161(1-a), 71 S.E.2d 206 and cit. Where it is sought to impose or enforce restrictions on the use or alienation of property, a preponderance of evidence is not sufficient, but the existence and validity of the restriction must be proved beyond a reasonable doubt. Atkinson v. England, 194 Ga. 854, 859, 22 S.E.2d 798 and cit.; Atlanta Ass'n of Baptist Churches v. Cowan, 183 Ga. 187, (188 S.E. 21). It follows that, in pleading facts relied upon to show that the use of the defendant's land is restricted in a manner capable of enforcement by the plaintiff (the defendant's deed being silent as to any such limitation of use) the facts pleaded must unequivocally demonstrate both the existence of the restriction and the plaintiff's right to rely thereon.

2. The rule is recognized that 'restrictions under a general plan adopted by the owner to sell lots may in equity be imposed on the lands, beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenants.' Phillips v. Ingram, 163 Ga. 580, 586, 136 S.E. 785. Whether or not implied covenants can be established and enforced otherwise than by equity (it having been held that this is not an equity case) they are based on the theory of mutuality of interest and obligation on the part of each of the purchasers. 'In the case of platted subdivision, where the lots are sold under similar restrictions, each deed referring to the plat, and are sold under a general plan of development for restricted purposes, there is a mutuality of quasi covenant which enables each lot owner to enforce the restrictions as against each other lot owner.' 19 A.L.R.2d Anno., 1274, 1278. Where this mutuality exists 'such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee and a remote grantee from the former owner who imposes the restriction are entitled to the same remedy for its enforcement as did their grantor.' Grove Lakes Subdivision v. Hollingsworth, 218 Ga. 443, 444, 128 S.E.2d 499, 500. 'It is fundamental that the parties seeking to...