Starkey v. Gardner
| Decision Date | 10 June 1927 |
| Docket Number | 565. |
| Citation | 138 S.E. 408 |
| Parties | 194 N.C. 74, 54 A.L.R. 806 v. GARDNER. STARKEY et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Shaw, Judge.
Civil Action by D. W. Starkey and wife against Francis L. Gardner. Decree for defendant, and plaintiffs appeal. Affirmed.
Restrictive covenants will not be rigidly enforced by injunction, where character of district has fundamentally changed.
Where district had become largely devoted to business, and property was worth more without restrictions, injunction enforcing restrictions held properly refused.
The plaintiff is the owner of lot No. 5 of block C, in the Hayes subdivision, West Asheville addition, Asheville, N.C. The defendant is the owner of lot No. 4 and part of lot No. 40. Both of said lots of land front on Haywood road. In both deeds there are restrictions against the erection of any "commercial or manufacturing establishment or factory or tenement or apartment house, or house or building to be used as a sanatorium or hospital, or allow at any time any buildings erected thereon for any such purpose." It is alleged in the complaint and admitted in the answer that the defendant is now proposing to erect upon his property a building which is in violation of the restrictions set forth in the deeds under which the parties hold title, but it is alleged that said restrictions are not binding and enforceable. The controversy was heard by Judge Shaw, who found the facts and rendered judgment as follows:
"This cause coming on to be heard at this the May term, 1927, of superior court of Buncombe county, upon the complaint and answer of the defendant filed herein, and upon the other evidence which is of record, and the argument of counsel the court finds as a fact that the plaintiffs, L. D Starkey and wife, are the owners of the lands described in the complaint, and the defendant, Francis L. Gardner, is the owner of the land and lots situate on Haywood road described in the complaint and answer.
The court further finds as a fact that about 12 years prior to the instituting of this action the defendant purchased the lands as alleged in the complaint and answer, which lands owned by R. P. Hayes and wife, Lucy P. Hayes, referred to in the plat described in the pleadings, were subdivided and the restrictions placed in the deeds of the purchasers as set out in said complaint and admitted in the answer, and that said lands so divided and sold fronting on Haywood road, a thoroughfare within the corporate limits of the city of Asheville, and when said lands were so platted that the same fronted on said Haywood road, which was then a macadamized road, and was not of any value upon which to establish business houses or buildings, but was then only valuable for residential purposes.
The court further finds as a fact that said Haywood road is now a thoroughfare, paved, and has sidewalks abutting thereon, water and sewer lines, and that upon said road, on which there were no business houses (stores, drug stores, banks, or other business buildings) at the time of the platting and sale of said lots fronting and abutting on said Haywood road, but since said time, to wit, within the last seven to eight years, there have been constructed upon said road, and in close proximity to the property of the defendant herein, store buildings, drug store buildings, garages, automobile sales, and other business houses on said Haywood road, and on either side of defendant's property, and the property referred to in said plat, and there have been constructed business houses, banks, and other buildings of such nature and kind that the said Haywood road on which the property of the defendant is abutting, and other property described in the Hayes plat, which has restrictions written into the deeds of the purchasers of the said subdivision, is valuable as business property, and that its value as business property is worth at least 100 per cent. more than its value as residential property.
And the court further finds from the affidavits herein that more than four-fifths of the owners of the lots in said subdivision, both fronting on Haywood road and lateral streets, and remote location, have joined with the defendant herein and ask that the restrictions herein be removed from the property referred to in the deed or deeds from R. P. Hayes and wife to the defendant, and all other owners and purchasers of said lots fronting on said Haywood road.
And the court further finds as a fact that it is inequitable and unjust to require the enforcement of the restrictions, for that the conditions for which said restrictions were placed in said deeds to the owners of the property situate on Haywood road are not beneficial to the property decribed in said subdivision, but, on the contrary, are detrimental and injurious to the market value of said property, and that if said restrictions are permitted to continue it will retard the advancement and upbuilding of said property for business purposes on said Haywood road. It is therefore ordered and adjudged that, by reason of the changed condition aforesaid, the restrictions created in said deed from R. P. Hayes and wife, Lucy P. Hayes, referred to above, are no longer in effect and that the property of the defendant, described in said complaint, is no longer subject to said restrictions, and that the application for injunction and restraining of the defendant, her agents or assigns, from building houses or business houses on her said property, be and the same is hereby denied, and the said defendant, her agents or assigns, are not bound by the terms of said restrictions, and they are permitted to use said lands and property for any lawful purposes.
It is further ordered that the plaintiff pay the costs of this action, to be taxed by the clerk."
From the foregoing judgment the plaintiffs appeal.
J. Scroop Styles, of Asheville, for appellants.
Wells, Blackstock & Taylor, of Asheville, for appellee.
The question is this: Under what circumstances are restrictive covenants in deeds for property originally devoted to residential purposes rendered unenforceable? There is no allegation in the complaint, and no finding of fact by the trial judge, that the Haywood road property was the result of a general plan or scheme, other than the fact that the original deeds contained restrictions as set out in the deeds of the plaintiffs and the defendant.
The question of restrictive covenants in deeds covering property designed for residential purposes exclusively is becoming more and more an important and perplexing proposition. In all of the larger cities of the state, suburban developments are multiplying, and the popularity of these developments rests upon the assurance...
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