Schwartz v. Holycross

• Decision Date: 25 November 1925
• Docket Number: No. 12030.,12030.
• Citation: 149 N.E. 699,83 Ind.App. 658
• Parties: SCHWARTZ et al. v. HOLYCROSS et al.
• Court: Indiana Appellate Court

83 Ind.App. 658

149 N.E. 699

SCHWARTZ et al.

v.HOLYCROSS et al.

No. 12030.

Appellate Court of Indiana, in Banc.

Nov. 25, 1925.

Appeal from Superior Court, St. Joseph County; L. J. Oare, Judge.

Suit by Louis M. Schwartz and others against Albert William Holycross and another for an injunction. Judgment for defendants, and plaintiffs appeal. Affirmed.D. D. Nemeth and Walter R. Arnold, both of South Bend, for appellants.

Lewis W. Hammond and Geo. W. Omacht, both of South Bend, for appellees.

McMAHAN, J.

Complaint to enjoin appellees from erecting and maintaining a building upon a certain lot in the city of South Bend in violation of the restrictions in a deed to appellees' immediate grantor, and in violation of a zoning ordinance of said city. The facts were found specially and are in substance as follows:

Edgewater place addition in South Bend was platted by Whitcomb and Keller in 1919. In October, 1921, they conveyed lot 57 in said addition to Thomas and Emma Lee, by a warranty deed containing the following provisions:

“Grantees agree and bind themselves, their heirs, and assigns that they will not move any buildings on said premises and will not erect or permit to be erected any building thereon except one dwelling for a residence for one family, and a garage for private purposes, and that said dwelling will not cost less than four thousand dollars. Grantees further agree that they will maintain a lawn space between said dwelling, not including an open porch, and the front line of said lot of not less than 30 feet, and that they will not erect said dwelling less than 3 feet from either side of said lot.

All restrictions and conditions herein contained shall be valid and binding and continue in force until January 1, 1945, provided, however, that such conditions and restrictions or any of them may be changed or abolished in any or all particulars by the owners of the lots in Edgewater place whenever two-thirds of the owners unite in signing and executing an agreement or resolution to that effect, which agreement or resolution shall thereupon be recorded in the proper records in the recorder's office of St. Joseph county, Ind., and be valid and binding upon the sellers and owners of said lots and upon all other persons.”

Said deed was recorded November 3, 1921. In September, 1922, Lee and Lee sold and by warranty deed, without any restrictive covenants, conveyed said lot 57 to Albert and Viola Holycross hereafter designated appellees. When this action was commenced, appellants were the equitable owners of lot 56 in said addition under a contract of purchase, from Whitcomb and Keller, containing the same restrictions as are contained in said deed to Lee and Lee. Said lots are contiguous to each other and are 30 feet wide fronting on River avenue. In June, 1923, the common council of South Bend enacted a zoning ordinance, which, in so far as its affects these lots, provides that no building shall be erected thereon less than 25 feet from the street, and that there be a yard of not less than 3 feet on each side of the building. On September 10, 1923, appellees began erection of a dwelling house on lot 57. The foundation of said house at its nearest point, exclusive of the porch, is 29 feet from the street line. Its nearest point to the line between lots Nos. 56 and 57 is 12 inches. The part of the house constructed nearest to the line of appellants' lot consists of a brick chimney 5 feet wide and which projects 4 inches from an alcove 9 feet wide and 16 inches distant from the line of lot 56. Said chimney and alcove are 16 and 14 feet, respectively, in height, but do not interfere with light or air to appellants' property.

On October 6, 1923, appellees commenced the construction of the alcove and chimney by putting in the foundation therefor, and on that day built the side walls of the alcove out of boards and studding to a height of about 5 feet and the chimney to a height of 4 feet. Appellants had no knowledge that appellees were erecting this house until October 6, on which day they notified the building commissioner of said city that said building was being constructed in violation of said ordinance. On October 7, appellees received a letter from the building commissioner calling attention to the fact that the building was being constructed nearer the side line of the lot than permitted by the ordinance and that they would be required to make the building comply with the ordinance. On that same day appellees visited appellant Louis M. Schwartz, and offered to buy 3 feet off of the side of lot 56. Schwartz refused to sell, and told appellees they must stop work on the building in the manner in which it was being done, but told them they could proceed in that manner if they paid appellants $200. There is no building on lot 56, except a 2-car garage on the rear end, and appellants have no definite plans for the erection of a dwelling thereon. Construction of said house by appellees was completed October 30, and when constructed had an open brick porch facing River avenue, 22 feet distant from lot 57; the nearest point to River avenue being 16 feet. No serious or substantial injury to appellants' property is shown to have been suffered by appellants, and no serious or substantial injury to said property is threatened by the manner in which said building has been constructed, and there is no evidence of any pecuniary damage to appellants by reason of the construction of said building.

Upon these facts the court concluded that the mandatory injunction should be refused and that appellants take nothing.

[1] The questions presented for our consideration relate to the correctness of the conclusions of law. Appellants insist that, under the facts as found, they were entitled to a mandatory injunction requiring appellees to modify their building so as to comply with the restrictive covenants of the deed as set out in the special finding. This contention is based upon the theory that appellants, under the facts, are entitled to a mandatory injunction as a matter of right. But, as was said by the court in Chartiers, etc., Co. v. Mellon, 152 Pa. 286, 25 A. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645, appellants “have appealed to us as chancellors, and even if we concede their right to be clear, it does not follow that as chancellors we will enforce it. *** It is a familiar law, too familiar to need the citation of authority, that the decree of a chancellor is of grace, not of right, and that he is not bound to make a decree which will do far more mischief and work far greater injury than the wrong which he is asked to redress.” “Where,” said the United States Court of Appeals, in Kryptok Co. v. Stead Lens Co., 190 F. 767, 111 C. C. A. 495, 39 L. R. A. (N. S.) 1, “the injury to the applicant if the preliminary injunction is refused will probably be greater than the injury to the opponent if it is granted, it should be issued, while, if the contrary is the probable result, the application for it should be denied.”

[2] A court of equity is never active in granting relief which is against conscience or public convenience. See Fesler v. Brayton, 145 Ind. 71, where, at page 84, 44 N. E. 37, at page 41 (32 L. R. A. 578), it is said:

“Nor ought the process of injunction to be applied but with the utmost caution. It is the strong arm of the court, and to render its operation benign and useful, it should be exercised with great discretion, and only upon necessity.”

[3] The principles upon which mandatory and prohibitory injunctions are granted do not materially differ. Courts are, however, more reluctant in granting the mandatory writ. Allen v. Stowell, 145 Cal. 666, 79 P. 371, 104 Am. St. Rep. 80, 68 L. R. A. 223, 104 Am. St. Rep. 80;Atchison, etc., R. Co. v. Long, 46 Kan. 701, 27 P. 182, 26 Am. St. Rep. 165;Stewart v. Finkelstone, 206 Mass. 28, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370.

In Attorney General v. Algonquin, 153 Mass. 447, 27 N. E. 2, 11 L. R. A. 500, where the defendant had violated a restrictive covenant in a deed, a mandatory injunction was issued, the court, however, in the course of its opinion, called attention to the fact that the violation was deliberate, the injury one not easily measurable in money, and it did not appear that the injury was trifling or unsubstantial so as to bring the case within the maxim, “De minimus,” a maxim of frequent application in this state where the court has refused to reverse because of the failure to assess nominal damages.

Courts have refused to grant the mandatory writ where there is no appreciable damages, and where the writ would require the performance of an act which would be difficult and which would involve a considerable expense. Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 278, 61 Am. St. Rep. 298;Lynch v. Union Institute, 159 Mass. 306, 34 N. E. 364, 20 L. R. A. 842. As was said in the case cited last:

“The doctrines applied by the court of equity in cases of this kind call for a consideration of all the facts and circumstances which help to show what is just and right between the parties.”

In Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691, 32 Am. St. Rep. 476, where the character of the locality had changed from a residential to a business district, a mandatory injunction was refused and on the report of the master that the plaintiff was entitled to damages, there being no finding that the damages were merely nominal, jurisdiction was retained for the purpose of assessing the damages.

[4] Equitable relief by way of a mandatory injunction is, and for the most obvious reasons should be, granted only in situations which so clearly call for it as to make its refusal work real and serious hardship and injustice. Lyons v. Walsh, 92 Conn. 18, 101 A. 488, L. R. A. 1917F, 680. “A mandatory injunction, like a mandamus, is an extraordinary remedial process which is granted, not as a matter of right, but in the exercise of a sound...