Rogers v. State Roads Commission

Decision Date20 February 1962
Docket NumberNo. 132,132
Citation177 A.2d 850,227 Md. 560
PartiesJames W. ROGERS et ux. v. STATE ROADS COMMISSION of Maryland.
CourtMaryland Court of Appeals

John D. Gilmore, Jr., Hyattsville (Nylen, Gilmore & Simpson and Leo Wm. Dunn, Jr., Hyattsville, on the brief), for appellants.

T. Thornton Murray, Sp. Atty., Upper Marlboro (- Thomas B. Finan, Atty. Gen., and Joseph D. Buscher, Sp. Asst. Atty. Gen., on the brief), for appellee.

Before BRUNE, C. J, and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

BRUNE, Chief Judge.

The appellant landowners, James W. Rogers and wife, appeal from a judgment in their favor for $3,000 for the taking of 1.46 acres of land abutting on Route 202 in Prince George's County. The judgment was entered upon the inquisition of a jury in a condemnation suit brought in 1960 by the appellee, the State Roads Commission (the Commission).

A tract of about 4 1/2 acres, apparently acquired by the Commission in or before 1945, in connection with the improvement of Route 202, was sold by the Commission to the Rogers in 1952 after negotiations extending over seven years. The deed from the Commission to the Rogers was executed by both the grantor and the grantees and contained this clause:

'Subject to the conditions and restrictions that no part of the property hereby conveyed shall ever be used for any commercial purposes whatsoever, this covenant to run with and bind the land hereby conveyed and shall bind the grantees herein, their heirs and assigns, forever.'

The land here involved is a part of the above 4 1/2 acre tract. About 90 acre is being taken in fee and .56 acre for easements. The Commission had reserved an easement in about 1/2 acre of the portion being taken in fee, and the fee therein subject to that easement had little or no value.

Evidence was introduced to show that the land in the neighborhood of the tract in question was residential when the Rogers acquired it in 1952, but that since then property across the road had become commercial in use and some adjacent land had been rezoned as light industrial and had been sold. It was also shown that other nearby land was zoned for industrial or commercial use; and there was testimony that the highest and best use of the land was for light industrial purposes. Its value for such use was greater than its value for residential purposes. After the institution of this suit the son of the owners applied for a rezoning of the property and the Maryland-National Capital Park and Planning Commission recommended that it be reclassified for light industrial use.

In giving his instructions, the court read the above quoted restriction and told the jury that it was 'a valid, subsisting covenant running with the land and binding on the land at the date of the taking, and therefore your consideration of value must take into consideration that restrictive covenant. And in determining its highest utility you must not consider any use other than residential use, although you are not restricted to the existing zoning that it was, rural residential, at the time. You may consider, based on evidence * * * that it might be feasible to zone the property to a more intensive residential use * * *. But you may not consider an industrial or commercial potential because that is forbidden under the restrictive covenant which the Court instructs you was valid and binding at the date of the taking.'

The appellants excepted to the instruction that the restrictive covenant pertaining to commercial use was valid and subsisting, and asked the court 'to instruct the jury to the effect that such covenant is no longer valid and subsisting by reason of the substantial change and deterioration in the character of the surrounding neighborhood, and to instruct the jury that they can find in light of such change that the property could be used for an industrial or commercial purpose.' The appellants' contention in this court would seem to shift the determination of the enforceability of the restriction from the judge to the jury. They say in their brief that 'the lower Court should have instructed the Jury that a substantial change in the surrounding area is a basis to have a restrictive covenant declared null and void and if they find that such a change has taken place, then, in that event the covenant would not be binding.'

Under either form of their contention the appellants apparently at least tacitly concede that if the restrictive covenant remained valid and enforceable without any prospect of becoming unenforceable in the immediate or near future, it would affect the value of the land and hence the damages for its taking.

There need not be any general plan of development in order to make a restrictive covenant enforceable if it is imposed by a grantor on a single tract conveyed by him for the benefit of adjacent property retained by him. Thruston v. Minke, 32 Md. 487; Clem v. Valentine, 155 Md. 19, 141 A. 710; Kleis v. Katcef, 160 Md. 627, 634, 154 A. 558. Since the party here interested in the enforcement of the restriction is the original grantor, we need not pause to consider its enforceability by a transferee of the original grantor. Likewise, since the parties against whom it is sought to be held enforceable are the original grantees, its enforceability against a transferee of the original grantees seems material only insofar as it might bear upon the saleability of the property by the original grantees. The restriction would, we think, be enforceable, whether or not it constituted a covenant running with the land, not only against the original grantees, but also against their assignees with notice. Thruston v. Minke, supra; Newbold v. Peabody Heights Co., 70 Md. 493, 17 A. 372, 3 L.R.A. 579; Raney v. Tompkins, 197 Md. 98, 102, 78 A.2d 183. See also Club Manor, Inc. v. Oheb Shalom Cong., 211 Md. 465, 475, 128 A.2d 405.

There are a number of cases in which it has been held that by reason of a change in conditions the purpose of a restriction cannot be accomplished and the restriction ceases to be enforceable. See such cases as Gulf Oil Corp. v. Levy, 181 Md. 488, 30 A.2d 740; Norris v. Williams, 189 Md. 73, 59 A.2d 331, 4 A.L.R.2d 1106; Needle v. Clifton Realty Corp., 195 Md. 553, 73 A.2d 895. See also Texas Co. v. Harker, 212 Md. 188, 129 A.2d 384, where the rule was recognized, but no sufficient change was shown to call for its application. The rule was also stated and a number of cases in support of it were cited in American Weekly, Inc. v. Patterson, 179 Md. 109, at 115, 16 A.2d 912, a case involving a restrictive covenant not pertaining to land.

One seeking to enforce a restriction in equity must have a standing entitling him to seek equitable relief. Foreman v. Sadler's Executors, 114 Md. 574, 80 A. 298 (retained ownership of a strip of land only inconsequentially affected held not sufficient); Boyd v. Park Realty Corp., 137 Md. 36, 111 A. 129; Bealmear v. Tippett, 145 Md. 568, 125 A. 806; Adams v. Plaza Const. Co., 157 Md. 674, 145 A. 483. Continued ownership by the original grantor of land benefitted by the covenant in the vicinity of the land subjected to the restriction is enough to entitled the grantor, as the original covenantee, to enforce the restriction. Clem v. Valentine, supra; Coomes v. Aero Theatre and Shopping Center, Inc., 207 Md. 432, 114 A.2d 631. See also a statement to like effect in Club Manor, Inc. v. Oheb Shalom Cong., supra, 211 Md. at 475, 128 A.2d 405. A covenant to prevent competition between a business on land granted and a business on land retained, or vice versa, has been held enforceable under this rule in Clem v. Valentine, Coomes v. Aero Theatre and Shopping Center, Inc., and Raney v. Tompkins, all previously cited. A similar result was reached in Newton-Abbot Co-op. Soc. Ld. v. Williamson & Threadgold Ld., [1952] Ch. 286. There a covenant against competition in a certain business was upheld in favor of the devisee and legatee of the original grantor, even though the land for the benefit of which the restriction was imposed was not identified in the deed conveying the land subjected to the restriction. It was, however, otherwise identified by the evidence.

In Clem v. Valentine, supra, the original grantors had sold that part of the lot on which they had located the store which was sought to be protected against competition from a like business on the lot sold. This court, in affirming the decree of the trial court, held that the grantee of the part of the lot containing the store was entitled to enforce the covenant, but the court also went on to say (155 Md. at 29-30, 141 A. at 714): 'This case would have to be affirmed without regard to the question of whether Mrs. Thompson [the grantee of the protected store property] was entitled to enforce the provisions of the restrictive covenant for the reason that Ellsworth C. Valentine and Dessie M. Valentine [the grantors of the property sold subject to the restriction] are parties complainant, and they are parties to the original instrument as well as retaining a lot 60 feet wide, of the depth of [the] one acre [lot], of the land held at the time the Clem deed was given. We have preferred, however, not to rest our decision on Mr. and Mrs. Valentine's claim alone, for the reason that we are convinced that Mrs. Thompson, the owner of the lot which all the evidence shows it was the intention to benefit by the restrictive covenant, is also entitled to maintain this action, and therefore entitled to the injunction prayed for * * *.' (Italics supplied.) Cf. Ringgold v. Denhardt, 136 Md. 136, at 144, 110 A. 321.

In Texas Co. v. Harker, supra (212 Md. at 198, 129 A.2d 384) this Court quoted with approval the following statement from Annotation, 4 A.L.R.2d 1112, 1118-19: 'Most jurisdictions now recognize a change in the character of the neighborhood as a ground for affirmative relief against restrictive...

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