Rodgers v. Reimann

• Decision Date: 19 April 1961
• Citation: 227 Or. 62,361 P.2d 101
• Parties: Robert R. RODGERS and Thelma M. Rodgers, Appellants, v. Rich L. REIMANN and Joy E. Reimann, Respondents.
• Court: Oregon Supreme Court

Page 101

361 P.2d 101

227 Or. 62

Robert R. RODGERS and Thelma M. Rodgers, Appellants, v. Rich L. REIMANN and Joy E. Reimann, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 19, 1961.

Decided April 19, 1961.

Roland F. Banks, Jr., Portland, argued the cause for appellants. With him on the briefs were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

J. Ray Rhoten, Salem, argued the cause for respondents. On the brief were Rhoten, Rhoten & Speerstra, Salem.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and LUSK, JJ.

O'CONNELL, Justice.

This is a suit in equity to enforce a building restriction contained in a land sale contract under which defendants were purchasers of a lot in the city of Salem, Oregon.

Defendants own the restricted lot, hereafter referred to as Lot 11, which abuts Kingwood drive on the east. The lot owned by plaintiffs abuts Kingwood drive on the west, directly across the street from Lot 11. Plaintiffs purchased their lot from Dr. and Mrs. Lebold on January 31, 1957. We shall refer to plaintiffs' parcel as the Lebold lot. At the time plaintiffs purchased the Lebold lot, Mr. and Mrs. Willett owned the lot adjoining the Lebold lot on the north. At that time also, the Lebolds and the Willetts owned Lot 11. On December 15, 1959 are Lebolds and the Willetts joined together to convey Lot 11 under a land sale contract to the defendants. The contract contained the following covenant:

'That no dwelling house shall be constructed on said real premises the floor level of which shall be more than one foot higher than the street curb of Kingwood Drive adjacent to said real premises.'

Soon after defendants entered into the contract for the purchase of Lot 11 they commenced construction of a dwelling house on the lot. Plaintiffs brought this suit to enjoin the construction of the dwelling house allegedly in violation of the covenant. The trial court entered a decree dismissing plaintiffs' complaint, from which decree plaintiffs appeal.

To be entitled to enforce the covenant plaintiffs must show that the building restrictions imposed upon Lot 11 were intended to benefit them as the owners of the Lebold lot and that defendants entered into the covenant with notice that the covenant was to have this effect. Hall v. Risley and Heikkila, 1950, 188 Or. 69, 96-97, 213 P.2d 818; O'Malley v. Central Methodist Church, 1948, 67 Ariz. 245, 194 P.2d 444, 449; Doerr v. Cobbs, 1909, 146 Mo.App. 342, 123 S.W. 547, 550; Vogeler v. Alwyn Improvement Corporation, 1928, 247 N.Y. 131, 159 N.E. 886, 887; Cheatham v. Taylor, 1927, 148 Va. 26, 138 S.E. 545, 547. See, Duester v. Alvin, 1915, 74 Or. 544, 551-552, 145 P. 660. The plaintiffs have the burden of proof in establishing these facts, Hays v. St. Paul M.E. Church, 1902, 196 Ill. 633, 63 N.E. 1040, 1041-1042; Clem v. Valentine, 1928, 155 Md. 19, 141 A. 710, 712; Lovell v. Columbian Natl. Life Ins. Co., 1936, 294 Mass. 473, 2 N.E.2d 545, 547; Lowell Institution for Savings v. City of Lowell, 1891, 153 Mass. 530, 27 N.E. 518; Cejka v. Korn, Mo.App.1939, 127 S.W.2d 786, 789; Wright v. Pfrimmer, 1916, 99 Neb. 447, 156 N.W. 1060, 1063, L.R.A.1917A, 323; Sailer v. Podolski, 1913, 82 N.J.Eq. 459, 88 A. 967, 968; Rowe v. May, 1940, 44 N.M. 264, 101 P.2d 391, 393; 2 American Law of Property, 1952, § 9.29, pp. 415-416, and to carry that burden they must overcome the constructional preference against restrictions limiting the use of land. Schmitt v. Culhane, Or.1960, 354 P.2d 75, 76; Hall v. Risley and Heikkila, 1950, 188 Or. 69, 87-88, 213 P.2d 818; Crawford et al. v. Senosky et al., 1929, 128 Or. 229, 232, 274 P. 306; Grussi v. Eighth Church of Christ, Scientist, 1925, 116 Or. 336, 342, 241 P. 66; Scott Co. v. Roman Catholic Archbishop, 1917, 83 Or. 97, 105, 163 P. 88; Note, Property-Restrictive Covenants-Right of Prior Grantee Under Common Grantor to Enforce Covenants in Deed to Subsequent Grantee, 1929, 38 Yale L.J. 827, 828. Cf., McMahon v. Williams, 1885, 79 Ala. 288, 291; Bauby v. Krasow, 1927, 107 Conn. 109, 139 A. 508, 510, 57 A.L.R. 331; Heisler v. Marceau, 1928, 95 Fla. 135, 116 So. 447, 448; Wardlaw v. Southern Ry. Co., 1945, 199 Ga. 97, 33 S.E.2d 304, 305-306; Peck v. Conway, 1876, 119 Mass. 546, 549; Ball v. Milliken, 1910, 31 R.I. 36, 76 A. 789, 795, 37 L.R.A.,N.S., 623, rehearing denied 1911, 78 A. 625; 2 American Law of Property, 1952, § 9.29, p. 416.

However, the intention to benefit a particular parcel of land through the imposition of the restrictions on the land conveyed need not be expressly recited in the contract or deed. Herb v. Gerstein, D.C.1941, 41 F.Supp. 634, 635; Wardlaw v. Southern R. Co., 199 Ga. 97, 33 S.E.2d 304, 305-306; Waterhouse v. Capital Investment Co., 1960, 44 Haw. 235, 289, 311, 353 P.2d 1007, 1009, 1013; Wischmeyer v. Finch, 1952, 231 Ind. 282, 107 N.E.2d 661, 665; Rieger v. Wessel, Ky.1958, 319 S.W.2d 855, 857-858; Scholtes v. McColgan, 1945, 184 Md. 480, 41 A.2d 479, 483-484; Clem v. Valentine, 1928, 155 Md. 19, 141 A. 710, 712; Baker v. Seneca, 1953, 329 Mass. 736, 110 N.E.2d 325, 327; Snow v. Van Dam, 1935, 291 Mass. 477, 197 N.E. 224, 226-228; Lowell Institution for Savings v. City of Lowell, 1891, 153 Mass. 530, 27 N.E. 518, 519; Doerr v. Cobbs, 1909, 146 Mo.App. 342, 123 S.W. 547, 550; Anderson v. Marshall-Malaise Lumber Co., 1935, 66 N.D. 216, 263 N.W. 721, 723; Johnson v. Shaw, 1957, 101 N.H. 182, 137 A.2d 399, 402; Semple v. Clark, 1928, 132 Misc. 903, 230 N.Y.S. 738, 740-741; Ridley v. Haiman, 1932, 164 Tenn. 239, 47 S.W.2d 750, 753. Contra: Werner v. Graham, 1919, 181 Cal. 174, 183 P. 945, 948, 949; Renals v. Cowlishaw, 1879, L.R. 11 Ch. 866, 868-869, affirming 1878, L.R. 9 Ch. 125.

It is not reasonable to presume that building restrictions such as we are concerned with here are intended simply for the personal benefit of the vendors. Bauby v. Krasow, 1927, 107 Conn. 109, 139 A. 508, 510, 57 A.L.R. 331; Baker v. Lunde, 1921, 96 Conn. 530, 114 A. 673, 676-677; Hegna v. Peters, 1925, 199 Iowa 259, 266, 201 N.W. 803; Welch v. Austin, 1905, 187 Mass. 256, 72 N.E. 972, 973, 68 L.R.A. 189; Peck v. Conway, 1876, 119 Mass. 546, 549; DeGray v. Monmouth Beach Club House Co., 1892, 50 N.J.Eq. 329, 342, 24 A. 388; Clark v. Martin, 1865, 49 Pa. 289, 297-298. Cf., McMahon v. Williams, 1885, 79 Ala. 288, 291; Wardlaw v. Southern Ry. Co., 1945, 199 Ga. 97, 33 S.E.2d 304, 305-306, 308; Ball v. Milliken, 1910, 31 R.I. 36, 76 A. 789, 795, rehearing denied 78 A. 625. Rather it is reasonable to presume that the covenant in the case at bar was intended to benefit at least the land which was retained by the Willetts at the time they joined with the Lebolds in conveying Lot 11.

It is somewhat more difficult to assume that such a covenant is intended to benefit a prior grantee of the vendor, or, as in this case, the prior grantee of one of the two co-grantors. Where the restrictions are a part of a general building plan the courts generally recognize that a prior purchaser from the covenantee can enforce the covenants subsequently entered into between his grantor and subsequent grantees. 2 American Law of Property (1952) § 9.30; 5 Restatement, Property, Servitudes (1944) Intr. Note, Ch. 46, p. 3244, and § 541, comment f. If the covenants touch and concern the land previously conveyed out of an area subdivided pursuant to a general building plan, it is ordinarily held that in the absence of evidence of a contrary intent it will be assumed that the parties intended to benefit such land. Maganini v. Hodgson, 1951, 138 Conn. 188, 82 A.2d 801, 804- 805; Armstrong v. Leverone, 1927, 105 Conn. 464, 471, 136 A. 71; McLean v. Thurman, Ky.1954, 273 S.W.2d 825, 828-829; Snow v. Van Dam, 1935, 291 Mass. 477, 197 N.E. 224, 228-229; Hartt v. Rueter, 1916, 223 Mass. 207, 111 N.E. 1045, 1046-1047; Sanborn v. McLean, 1925, 233 Mich. 227, 206 N.W. 496, 497, 60 A.L.R. 1212; DeGray v. Monmouth Beach Club House Co., 1892, 50 N.J.Eq. 329, 340-342, 24 A. 388; Tallmadge v. East River Bank, 1862, 26 N.Y. 105, 109, 112; Johnson v. Mt. Baker Church, 1920, 113 Wash. 458, 194 P. 536, 538; Kramer v. Nelson, 1926, 189 Wis. 560, 564, 208 N.W. 252. See, Vogeler v. Alwyn Improvement Corporation, 1928, 247 N.Y. 131, 159 N.E. 886, 887-888.

However, where, as here, there is no general building plan, the inference that the covenant is intended to benefit land previously conveyed by the common grantor is ordinarily more difficult to draw. Some courts take the view that in the absence of a general building scheme a covenant cannot inure to the prior grantee even though the covenantor and covenantee intended to benefit the land previously conveyed. Snow v. Van Dam, 1935, 291 Mass. 477, 197 N.E. 224, 228; Hazen v. Mathews, 1903, 184 Mass. 388, 68 N.E. 838, 839; Roberts v. Scull, 1899, 58 N.J.Eq. 396, 402, 43 A. 583. But, as pointed out by the Restatement of Property, the prevailing view is to the contrary: 'It has, however, come to be the prevailing view that beneficiaries of a promise other than the promisee can enforce the promise (see Restatement of Contracts, Chapter 6) even though the promise is not part of a general plan. To the extent to which this is true, the fact that a promise respecting the use of land is not made pursuant to a general plan of land development is not a barrier to the enforcement of the promise by third parties who are beneficiaries of the promise.' 5 Restatement, Property, Servitudes, 1944, Intr. Note, Ch. 46, p. 3244. We adopt the prevailing view.

We find no difficulty in recognizing the principle that a prior grantee may sue upon a covenant subsequently made by his grantor, if all of the elements essential to the enforcement of the covenant are present. Some courts have regarded the prior grantee as a third-party beneficiary of a contract entered into between his grantor and the covenantor. Hays v. St. Paul M.E. Church, 1902, 196 Ill. 633, 63 N.E. 1040, 1041; Lister v. Vogel, 1932, 110 N.J.Eq. 35...