Romig v. Modest
| Decision Date | 14 December 1956 |
| Citation | 142 N.E.2d 555,102 Ohio App. 225 |
| Parties | , 2 O.O.2d 242 ROMIG et al., Appellees, v. MODEST et al., Appellants. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Where fences of various descriptions have been erected on at least 14 lots of a plat of 53 lots, in violation of a restrictive covenant contained in such deeds against the erection of fences on such lots, and the lot owners by mutual consent accepted the erection of rear lot line fences without objection, such violations of the restrictive covenant amount to waivers and operate to deprive a lot owner of the right to enforce such restriction with respect to a fence erected on a rear lot line.
2. In such case, where the few side line fences erected on such lots do not substantially affect the architectural scheme and general landscaping of the platted area and have offered at most only slight obstruction to the open rear lawns which afford unobstructed view, light and air to the lot owners, such restrictive covenant has not lost its value, and equity will enjoin the erection of a side line fence which would substantially alter the character of the neighborhood and impair the enjoyment of another's property; and the waiver of the restriction with respect to the rear lot line fences and the failure to object to the erection of a few side line fences do not operate as a waiver to the erection of such side line fence.
3. In such case, the test is whether, under the circumstances, there is still a substantial value in such restriction, which is to be protected; and where there is a substantial value to the dominant estate remaining to be protected, equity will enforce a restrictive covenant against the erection of fences.
4. In such case, the burden of proof rests on the person erecting such fence to prove a waiver or abandonment of such restriction.
Charles A. Funkhouser, Dayton, for appellants.
Beigel & Mahrt and Jack E. Staley, Dayton, for appellees.
This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery County granting a mandatory injunction requiring defendants to remove a fence erected on their lot.
This is a suit in equity and is in this court de novo. By stipulation, the record taken below is submitted as the evidence in this court.
The action involves the enforcement of a restrictive covenant in a deed. The petition alleges that plaintiffs and defendants are the owners of adjoining lots on the First Addition to Hills-Dale Plat, Montgomery County, Ohio. The plat is subdivided into 53 lots. The plat contains certain restrictions, and the deeds to the lot owners contain the identical restrictions. Restrictive covenant No. 9 is as follows:
'No fences of any kind except hedge fences of not over thirty (30) inches in height shall be erected or maintained on said premises nearer to the line of any street abutting thereon than the 'Building Lines' herein referred to. No fence, except shrubbery or hedge fences, shall be erected anywhere on said premises except that trellises may be built to support vines provided they are not built nearer to the line of any street abutting thereon than the 'Building Lines' herein referred to.'
The petition alleges further that defendants erected and maintain a wire fence on their lot and that the fence was not a trellis built to support vines. Plaintiffs claim they have no adequate remedy at law.
Defendants, in their answer, admit all material allegations in plaintiffs' petition, but set up an affirmative defense to the effect that the enforcement of the covenant has been waived by reason of the fact that owners of lots on the plat over the years have erected and do now maintain fences on their lots in violation of the terms of the covenant and without objection on the part of the plaintiffs, and that a strict enforcement of the covenant has been waived or abandoned by mutual consent of the lot owners. Plaintiffs filed a reply denying the allegations in the answer constituting the special defense.
The defendants received a deed to their lot in October 1945, and the plaintiffs received their deed in November 1950. In the month of April 1955, the defendants enclosed their rear yard by erecting a wire fence on the rear lot line, and also on the side lot lines extending from the rear lot line to the rear of defendants' residence. The corner posts, intermediate posts and braces are metal. The fence is the usual height and has much of the appearance of a farm fence, except the top is scalloped. The defendants erected the fence, although warned by plaintiffs prior to its erection that it violated the terms of the restrictive covenant and that they objected to its erection. Most of the evidence had to do with the existence of other fences on other lots on the plat, which had been erected over a period of years. The evidence shows that at least 14 lots of the 53 on the plat have fences of some description--wire, wood, picket or split rail, some painted and others unpainted, some very low and others the usual height, some conspicuous and others obscured by being covered with vines or shrubbery. Most of the fences are of the split rail type, existing on the rear lot lines. There are no alleys separating the rear of the lots.
Prior to the erection of defendants' fence, there was an unobstructed view afforded plaintiffs over the rear yards of a tier of six lots. A portion of the area is hilly and rugged, and a studied effort has been made by the lot owners to maintain the rustic beauty of the surroundings. The split rail or split post type of fence does not detract from the rustic beauty of the addition. In addition to defendants' wire fence, three other wire fences exist; one a low ornamental, another a high ornamental, and another an open-wire fence partially obscured by vines and shrubbery. The wire fence erected by the defendants is wholly out of harmony with the architectural scheme and the landscaping of the area.
It is conceded that the erection of a fence is a violation of the covenant. Some of the fences erected are what may be described as technical or trivial violations and others constitute substantial violations.
The fences on three lots are observable from plaintiffs' lot; other fences are not. However, the plaintiffs are chargeable with notice of all fences erected in the addition. The plaintiffs had actual knowledge of the existence of many of the fences and would have constructive notice of all others. Plaintiffs had sufficient facts to put them upon inquiry. 30 Ohio Jurisprudence, 225, 235, Sections 19 and 29.
Plaintiffs contend that they have not waived their right to have the covenant enforced with...
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