Snashall v. Jewell
| Decision Date | 12 July 1961 |
| Citation | 363 P.2d 566,228 Or. 130 |
| Parties | Robert C. SNASHALL and Mary V. Snashall, Respondents, v. Don JEWELL and Elaine Jewell, Appellants. |
| Court | Oregon Supreme Court |
Donald H. Joyce, Portland, argued the cause and submitted briefs for appellants.
Richard R. Carney, Portland, argued the cause for respondents. On the brief were Carney & McCarroll, Portland.
Before McALLISTER, C. J., and SLOAN, O'CONNELL and LUSK, JJ.
This suit was brought to enjoin defendants from maintaining a dwelling house which it is alleged violated a restrictive covenant contained in defendants' deed against the construction of 'more than one single story dwelling.' The trial court denied the injunction but awarded plainiffs damages in the amount of $2,500. Defendants appeal.
Both plaintiffs and defendants received their deeds from common grantors, Nosler and Powell, who owned a tract of land lying along S. W. Altadena Avenue and S. W. Washouga Avenue in the Council Crest area of Portland. The tract was located on a slope providing a hillside location for the construction of dwellings with a view of the Tualatin Valley. The area was referred to by Nosler and Powell, its developers, as 'Faircrest' before it was platted and eventually it was platted under that name.
The deeds to other lots in the development which were executed before and after the execution of the deeds to plaintiffs and defendants contained building restrictions similar to those in defendnats' deed forbidding the erection of 'more than one single story dwelling.' These deeds, and defendants' deed, also contained a covenant that building plans were required to be approved by the common grantors 'for conformity and harmony of external design with existing structures and to provide maximum view for surrounding property.' In some of the deeds the restrictive covenants were simply entitled 'restrictions,' whereas in others they were referred to as 'Faircrest Restrictions.' In the deed to the first lot conveyed out of the area along S. W. Altadena Avenue, in addition to the restrictions referred to above, there was also a covenant 'that upon sale of surrounding tracts in Faircrest, the above restrictions will be minimum restrictions included in such conveyances.'
Plaintiffs received their deed after fourteen other lots had been conveyed out of the tract. Plaintiffs deed did not contain any express building restrictions; all of the other deeds executed before and after the execution of plaintiffs' deed did contain the express restrictions. However, plaintiffs' deed did make reference to the restrictions for in plaintiffs' deed the grantors covenanted that the lot was free from all encumbrances, the covenant being qualified by the following clause: 'except building restrictions, set back lines, zoning ordinances and easements, if any of record.'
Defendants' deed was executed on March 13, 1959, and was the next deed after plaintiffs' in the chronology of the conveyances out of the tract. Defendants' deed contained the restrictive covenants found in the other deeds. Plaintiffs' and defendants' lots adjoin.
When plaintiffs observed that defendants' dwelling was being constructed in a manner which indicated a possible violation of the restriction limiting construction to one story dwellings they made their objection known to defendants. Defendants' attorney asked plaintiffs to withhold filing suit until he had time to study the matter.
Subsequently, defendants deeded their lot back to Nosler and Powell and the latter forthwith reconveyed the lot to defendants, the deed containing restrictive covenants worded differently from that contained in the deed first executed to them, the modification, if effective, permitting the type of dwelling constructed by defendants.
Defendants assert that the covenant contained in defendants' deed was not intended to benefit plaintiffs who, as we have observed above, obtained their deed prior to the execution of the defendants' deed. In Rodgers v. Reimann, 1961, Or., 361 P.2d 101, recently decided, we discussed at some length the theories upon which a prior grantee may maintain an action for a breach of covenant by a subsequent grantee taking from a common grantor. In the Rodgers case there was no evidence of a general building scheme and we held that in absence of such a scheme the prior grantee would be required to prove that, in imposing a restriction on a lot subsequently conveyed, it was the common grantor's intention to benefit the lot previously conveyed. However, we pointed out that where there is proof of a general building scheme the intention to benefit the lot previously conveyed is implied, assuming of course that the lot is a part of the tract embraced in the common plan.
Defendants contend, however, that there was no proof of a general restrictive plan in the case at bar. They assert that the deeds executed prior to the execution of the deeds to plaintiffs and to defendants conveyed out only lots in the southerly portion of the tract owned by Nosler and Powell and that those lots formed a unit in themselves, separate and apart from the lots which made up the northerly part of the tract in which both plaintiffs' and defendants' lots are located. We think that the evidence adequately shows the intention to establish a general plan of restrictions for the entire tract out of which Nosler and Powell made the several conveyances. The unity which defendants see in the southerly portion of the larger tract is based for the most part on the fact that an intersecting street (S. W. Washouga Avenue) running east and west penetrates the tract and thus separates a part of the tract. But the intersecting street does not extend all the way through the tract; the lots along the western edge of the tract (in which part of the tract both plaintiffs' and defendants' lots are located) are not separated by the intersecting street. A diagram of the tract is set out in the margin.
Defendants' lot abuts the western side of S. W. Altadena, north of S. W. Washouga and is designated as lot 2 on the diagram. Plaintiffs' lot adjoins the north side of defendants' lot.
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