State-Planters Bank of Commerce and Trusts v. Standard Cary Corp.

• Decision Date: 08 September 1967
• Docket Number: STATE-PLANTERS
• Citation: 156 S.E.2d 778,208 Va. 298
• Court: Virginia Supreme Court
• Parties: BANK OF COMMERCE AND TRUSTS, Co-Executor, etc., et al. v. STANDARD CARY CORPORATION. SECOND NATIONAL BANK OF RICHMOND v. STANDARD CARY CORPORATION.

Page 778

156 S.E.2d 778

208 Va. 298

STATE-PLANTERS BANK OF COMMERCE AND TRUSTS, Co-Executor, etc., et al. v. STANDARD CARY CORPORATION.

SECOND NATIONAL BANK OF RICHMOND v. STANDARD CARY CORPORATION.

Supreme Court of Appeals of Virginia.

Sept. 8, 1967.

Rehearings Denied Oct. 17, 1967.

John W. Pearsall, Richmond (Melvin R. Manning, John W. Pearsall, III, McCaul & Pearsall, Richmond, on the brief), for State-Planters Bank of Commerce and Trusts, and others.

James M. Minor, Jr., Richmond (Franklin J. Carter, G. Clinton Moore, Richmond, on the brief), for Second Nat. Bank of Richmond.

LeRoy R. Cohen, Jr., Richmond (Cohen, Kelly & Abeloff, Richmond, on the brief), for appellee.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

In 1956 Hilton W. Goodwyn leased land in the Richmond Shopping Center to Standard-Cary Corporation ('Standard') under a lease (the '1956 Lease') that contained restrictive covenants concerned primarily with Standard's parking rights. In 1965 Goodwyn leased other land in the Shopping Center to the Second National Bank of Richmond. Goodwyn constructed banking facilities, including a building and other improvements, and provided for a drive-in teller lane on the land leased to the Bank. He also relocated an existing vehicular traffic lane so that it adjoined the new improvements and drive-in teller lane. As a result, about 10 parking spaces were eliminated.

Standard brought this suit against Goodwyn and the Bank to enjoin alleged violations of the restrictive covenants of the 1956 Lease, complaining particularly about the elimination of parking spaces and the Bank's proposed operation of drive-in teller facilities. ¹

For an understanding of the restrictive covenants we reproduce an aerial photograph of the Shopping Center taken in 1962, after Standard's drug store had been erected:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As shown on the photograph the Shopping Center is bounded by Ellwood Avenue on the north (bottom), Thompson Street on the west (right), Cary Street on the south (top) and Nansemond Street on the east (left). The Standard Drug Store is near the intersection of Ellwood Avenue and Nansemond Street (lower-left corner). A Colonial Store (the only major tenant of the Shopping Center when the 1956 Lease was made) stands to the right of the Standard Drug Store.

The bank building and other improvements, which are the subject of this controversy, are not shown on the aerial photograph. They stand immediately to the right (west) of the Stuckey property at the upper-left (southeast) corner of the photograph, near the curb-cut on Cary Street identified by an arrow. Neither the Stuckey property nor the property at the upper-right corner is part of the Shopping Center.

The restrictive covenants describe the area reserved for parking by reference to a white print attached to the 1956 Lease, but the markings on the print do not clearly designate that area. However, counsel appear to agree that the area reserved for parking was: (1) the land to the left of the Standard building, and (2) the land above the upper line of Standard, Colonial and the building to the right of Colonial. Clearly excepted from the area reserved for parking were: (1) the land between the Standard and Colonial buildings, (ii) the land to the right of the Colonial building, (iii) the upper-left corner occupied by Stuckey, and (iv) the upper-right corner including the ABC store and the building and land to the west. The restrictive covenants also make or imply other exceptions.

The restrictive covenants read:

'4. The Landlord (Goodwyn) agrees that the parking area outlined on the white print aforesaid and attached hereto shall remain a parking area in its entirety throughout the terms of this lease and any extension and renewals thereof except that there is hereby reserved by the Landlord:

'And Expressly excepted from the parking area above described.

a. A strip of land 25 feet in width fronting on Cary Street adjoining the present ABC Store and being the western 25 feet of the lessors (Goodwyn's) frontage on Cary Street. Said 25 feet paved (sic) extending northwardly 130 feet, the north line thereof coinciding with the north line of the said ABC Store Building.

b. A strip of land 25 feet in width fronting on Cary Street adjoining the service station property now or formerly owned by A. B. Stuckey and being the eastern 25 feet of lessors (sic) frontage on Cary Street, said 25 foot parcel extending northwardly 130 feet, the north line thereof coinciding with the north line of the said A. B. Stuckey Property. And, of course, the drive in entrances on Cary Street will at a proper time be changed to accommodate any new structures on the said two strips of land excepted as aforesaid that might be built on the said strips of land.'

'(4 1/2) 'It is agreed that the lessee's (Standard's) employees shall park their cars only at such places as may be designated by the lessor provided such places are either within the above described parking area or made available by lessor within 500 feet of lessee's premises. The lessee will provide lessor with the license numbers of its employee's (sic) cars within ten days following the request therefor.'

'(4 3/4) 'The lessor reserves for itself and its successors and assigns the right to rearrange said parking lot and side walks and to grant easements from time to time but Except as herein provided not to change the character of the area. The lessor at all times shall maintain entrances and exits and approaches from (sic) the stores and through the parking facilities at least as good as the present arrangement. " (Emphasis supplied.)

Under the lease to the Bank, made in 1965, Goodwyn leased a strip of land immediately west of the Stuckey property, fronting 35 feet on Cary Street and extending northwardly 130 feet. The frontage on Cary Street therefore exceeded the 25-foot frontage allowed under subparagraph 4b of the restrictive covenants. As provided in the lease Goodwyn constructed a bank building on the leased property, the west wall of which stands 25 feet west of the Stuckey property line. ² At the same time Goodwyn made other improvements that extend up to about 10 feet beyond the west wall, added a drive-in teller lane and provided a new traffic lane, as shown on the following sketch ³.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As shown on the sketch Goodwyn constructed steps near Cary Street leading to an exterior walk along the west wall of the building. The walk, which is bordered on the outside by a concrete planter box, provides access to a glassed-in vestibule and from the vestibule into the building. The vestibule extends about 10 feet from the west wall of the building. It is bordered on the north by another concrete planter box. To the north of this planter box there is a drive-in teller lane providing access to two teller windows. The windows and, to a greater extent, the canopies over the windows project from the west wall of the building. Legs of the west wall and a night depository box also project from the wall. Pavements or curbings, indicated by dots on the sketch, have been constructed on the west side of the building. ⁴

While the building was under construction an existing curb-cut or drive-in entrance on Cary Street (identified by an arrow on the aerial photograph reproduced supra p. 780) and the accompanying 24-foot traffic lane in the Shopping Center were moved to the west. The record does not show the exact location of the curb-cut before it was moved, but the witnesses agreed it would have been blocked by the building. The eastern edge of the new curb-cut and 24-foot traffic lane is about 10 feet west of the west wall of the building, separated from the building as shown on the sketch reproduced supra p. 782. If the eastern edge of the new curb-cut and traffic lane had been placed against the west wall of the building, about 10 of the formerly existing parking spaces would have been preserved.

Basically Standard contends that Goodwyn and the Bank violated the restrictive covenants of the 1956 Lease by: (1) eliminating parking spaces west of the bank building, and (2) constructing drive-in teller facilities that would cause increased congestion in the Shopping Center when they were opened for business. The trial court fully sustained Standard's position. By the decree appealed from, the court (among other things) directed Goodwyn to demolish part of the bank improvements and restrained Goodwyn and the Bank from operating any drive-in facility on the leased premises. ⁵

Before dealing with the more troublesome issue, which involves an interpretation of the restrictive covenants, we will deal with Standard's contention that the west wall of the bank building protrudes 6 inches onto the area reserved for parking by the restrictive covenants.

During the trial Standard attempted to prove that the outer west wall was 25 feet 6 inches west of the Goodwyn-Stuckey boundary line and therefore extended 6 inches west of the 25-foot strip described in subparagraph 4b of the restrictive covenants. It attempted to prove this by introducing evidence indicating that the outer east wall (which was admittedly 25 feet from the outer west wall) stood not on the boundary line, but 6 inches west of the boundary line.

But Standard's evidence left the true location of the boundary line a matter of conjecture. It consisted only of an architect's drawing indicating that the boundary line was 6 inches east of the east wall of the bank building and of testimony that a hub had been placed in the sidewalk 6 inches east of the east wall. No evidence was introduced to show either the metes and bounds of the property conveyed to Goodwyn and to his predecessors in title, or to show the metes and bounds of the property conveyed to Stuckey and to his predecessors in title. So...