Scheuer v. Britt

• Decision Date: 19 January 1928
• Docket Number: 3 Div. 823
• Citation: 115 So. 237,217 Ala. 196
• Parties: SCHEUER v. BRITT.
• Court: Alabama Supreme Court

115 So. 237

217 Ala. 196

SCHEUER v. BRITT.

3 Div. 823

Supreme Court of Alabama

January 19, 1928

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill for injunction by Lillie W. Scheuer against J.E. Britt. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

S.H Dent, of Montgomery, for appellant.

Horace Stringfellow and Jack Thorington, both of Montgomery, for appellee.

BOULDIN J.

The bill is to enjoin the erection of a store building and filling station within an area alleged to be restricted to residences only. The appeal is from a decree sustaining demurrers to the amended bill.

The bill shows complainant is the owner of described lots as shown by recorded plot of South Cloverdale, and respondent the owner of lots in the same plat opposite and across the street from the property of complainant.

The averments upon which the equity of the bill is rested are these:

"That Mamie D. Jones was originally the owner of the property described in said plat; that she divided said property off into lots to be sold solely for residential purposes; that an auction sale was held on the premises, at which sale it was publicly announced that all lots sold were to be for residential purposes only. Complainant further alleges that the advertising contained in the Montgomery Advertiser prior to the sale of these lots also contained a notice that they were to be sold for residential purposes only. ***

" 'Complainant further avers that the plat of the property hereinbefore described was not only laid off in lots, but divided by streets, and that the property sold at public auction was for residential purposes only.' ***

"Complainant further avers that, while the deed of the said J.E. Britt does not contain a restriction to the effect that his lots were sold for residential purposes only, that he had notice of the fact that all the lots in said plat were subjected to the restriction that the same were to be used for residential purposes only, and complainant further avers that the said J.E. Britt, prior to the time he commenced the erection of storehouse property and a filling station upon his said lots, approached complainant with request that he be permitted to erect such structures and complainant positively refused and declined to agree thereto. ***

"Complainant further avers that at the time the defendant, J.E. Britt, purchased the lots hereinabove described he had notice of the fact that the said property had been platted and divided off into lots and streets solely for residential purposes."

It will be noted there is no averment of any restriction upon the use of lots within the area incorporated in the deed of this complainant, nor in any of the deeds to lots sold at public auction or thereafter, nor that such restriction appeared on the recorded plat and was thus incorporated by reference into such deeds.

The controlling question is: Can restrictive building provisions of this character rest wholly in parol?

Building restrictions appearing in a deed, limiting the use of the property granted, impose a servitude in the nature of a negative easement appurtenant to and running with the land. Weil v. Hill, 193 Ala. 407, 69 So. 438; Hill v Weil, 202 Ala. 400, 80 So. 536; McMahon v. Williams, 79 Ala. 288: Noojin v. Cason, 124 Ala. 458, 27 So. 490.

It seems settled by our decisions that such easement, whether a restriction forbidding use of the property for specified purposes, or a restriction limiting the use to specified purposes, is within the statute of frauds; that a conveyance of the absolute title cannot be varied by parol so as to subject the property to such servitude, and so pass a lesser estate than granted in the deed. Clanton v. Scruggs, 95 Ala. 279, 10 So. 757; Allen v. Bromberg, 163 Ala. 620, 50 So. 884; Holloway v. Smith, 198 Ala. 118, 73 So. 417.

Appellant conceives that a different case is presented when it appears the lots were sold pursuant to a general plan of improvement or building scheme, when a sale of suburban property has been promoted, and enhanced prices have been obtained upon assurances to the public that the use of the property shall be restricted to residences only.

This question does not appear to have arisen directly in any of our cases. It has generally arisen in other states in cases involving the construction of building restrictions written into the deeds.

To give full effect to such provisions rather liberal rules generally prevail in admitting...