Spilling v. Hutcheson

• Decision Date: 09 June 1910
• Citation: 111 Va. 179,68 S.E. 250
• Parties: SPILLING v. HUTCHESON.
• Court: Virginia Supreme Court

68 S.E. 250

111 Va. 179

SPILLING

v.HUTCHESON.

Supreme Court of Appeals of Virginia.

June 9, 1910.

1. Covenants (§ 103^*) — Construction — Building Line.

A covenant that the building line of a square shall be not less than 25 feet from the true street line, it being understood that the front wall of the building shall be set back at least 25 feet from the street line, is breached by the erection of a bow window projecting over the line, the foundation of which, in common with the remaining outside walls, rises from the ground, and which extends up two stories.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 169; Dec. Dig. § 103.*]

2. Covenants (§ 103*) — Construction — Building Line.

A front porch, consisting of an open frame structure resting on brick piers, is not a breach of the building line covenant, under the rule that the language of a deed is to be construed liberally in favor of the grantee.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 169; Dec. Dig. § 103.*]

3. Injunction (§ 62*)—Mandatory Injunction—Grounds—Remedy at Law.

A mandatory injunction, prohibiting an encroachment and ordering an abatement of a structure which constitutes a violation of a building line covenant, will not be denied on the ground that it inflicts hardship on the defendant, and that the plaintiff should be left to the remedy at law for damages for breach of the covenant.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 124-129; Dec. Dig. § 62.*]

Appeal from Chancery Court of Richmond.

Suit by Lelia G. Hutcheson against William H. Spilling. From the decree, both parties appeal. Affirmed.

Page & Leary, for appellant.

A. W. Patterson, for appellee.

WHITTLE, J. The appellee, Lelia G. Hutcheson, sold and conveyed to the appellant William H. Spilling, a vacant lot in the city of Richmond, fronting 30 feet on Grove avenue and extending back between parallel lines 179 feet. The deed of convey-ance contains the following covenant: "The parties hereto also, in consideration of the premises, further covenant and agree with each other, for themselves, their heirs and assigns, that the building line of the square shall be not less than twenty-five feet from the true street line, it being understood by them that the front wall of the building shall be set back at least twenty-five feet from the street line, and this covenant is to run with the land."

Shortly after the sale the purchaser erected a three-story brick residence upon the lot with a frontage of 26 feet 2 inches; 12 feet of this space being occupied by a bow front or window, the foundation of which in common with the remaining outside walls, rises from the ground. That part of the structure is two stories high, and is not separated from the space it incloses by an inner wall, and it projects over the building line 4 feet 2 inches. In addition to the bow window, a front porch, extending the entire width of the building, projects 10 feet over the line.

When advised of these encroachments, Mrs. Hutcheson, who claims ownership of the rest of the square, which she has dedicated to residential purposes, filed her bill against Spilling, charging a breach of the covenant in the particulars indicated, and prayed for a mandatory injunction compelling the defendant to conform his building to the established line by removing the bow window and porch.

The defendant denies the alleged breach of covenant, and insists that the term "front wall, " as employed in the deed in question, means the front of the main wall, and does not include the appurtenances, the window and the porch. He moreover insists that, even though the covenant were breached, as charged, the plaintiff would have a full, adequate, and complete remedy by action at law for damages, and therefore is not entitled to invoke the extraordinary remedy by mandatory injunction.

The chancery court sustained the building restriction, and found that the defendant had violated his covenant in projecting the bow window beyond the building line; but with respect to the porch it was held that there had been no violation of the restrictive covenant. The court accordingly pronounced the decree under review, disposing of the case in both aspects.

The first contention of the appellant is controlled by the opinion of this court in the recent case of Eubank v. City of Richmond, 67 S. E. 376. In that case the court sustained the validity of a city ordinance which declared that no person coming within its terms should erect a building nearer to the street line than the building line established by its authority. The court there held that it was a violation of the ordinance to...