Stevenson v. Spivey

• Decision Date: 19 January 1922
• Citation: 110 S.E. 367
• Parties: STEVENSON . v. SPIVEY.
• Court: Virginia Supreme Court

110 S.E. 367

STEVENSON .

v.SPIVEY.

Supreme Court of Appeals of Virginia.

Jan. 19, 1922.

Appeal from Hustings Court of Portsmouth.

Suit by James T. Stevenson against E. Spivey. Decree for defendant, and plaintiff appeals. Affirmed.

Mann & Tyler, of Norfolk, for appellant.

J. Edward Cole, of Norfolk, for appellee.

KELLY, P. This is an injunction suit brought by Stevenson against Spivey to restrain the latter from violating a building restriction contained in a deed from one of his remote grantors. The decree appealed from denied the relief prayed for, and Stevenson assigns error.

By deed dated June 12, 1901, the Port Norfolk Land Company conveyed to one T. V. Owens a certain lot designated on one of that company's recorded plats as No. 443. Immediately following, the granting clause and the covenants of title the deed contained this sentence: "No building to be erected within twenty-five (25) feet of the front line of said lot." By three successive mesne conveyances, the last of which was dated July 13, 1914, this lot passed to and became the property of the defendant, Spivey. Neither of the intermediate conveyances contained any building restriction whatever, or any reference to any such restriction in the first deed.

By deed of May 11, 1905, the said Port Norfolk Land Company conveyed to complainant, James T. Stevenson, lot No. 445 as designated on the plat aforesaid. This deed contained the same building restriction which was embodied in the conveyance from the land company to Stevenson, to wit:

"No building to be erected within twenty-five (25) feet of the front line of said lot."

Lots 443 and 445, each has a frontage of 40 feet on Maryland avenue, and each runs back between parallel lines a depth of 140 feet. Between these two lots is lot 444, fronting on the same street, being of the same size and dimensions as each of the other two; and immediately adjacent to lot 445 on the other side is lot 446, of like frontage, size, and dimensions.. Lot 444 is owned by Spivey and lot 446 by Stevenson. Lot 444, acquired by Spivey in the same deed with lot 443, was conveyed to Spivey's predecessor in title by the Port Norfolk Land Company without any building restriction, and no such restriction appeared in any subsequent conveyance thereto. Lot 446, owned by Stevenson, was originally conveyed to one of his predecessors in title without restriction.

Stevenson resides on lot 445, Spivey's intervening lot 444 is vacant, and he resides on lot 443, whereon he has a combined dwelling and storehouse, and he is now proposing to extend the front of his storehouse practically up to the front line of the lot. This will contravene the terms of the building restriction in the original deed from the land company and entitles the complainant to an injunction, provided the defendant is bound by that restriction. Spilling v. Hutcheson, 111 Va. 179, 68 S. E. 250.

The first proposition advanced by the appellant, and the one chiefly relied upon here as a ground for a reversal of the decree of the lower court, is that the restriction in the deed from the land company to Owens was inserted in conformity with and as a part of the execution of a general plan for the development of a certain known and well-defined part of the property of which lot 443 was a part, this general scheme being intended for the benefit of all the lots in that territory, those sold as well as those retained by the company, and that therefore the covenant or restriction runs with the land, and binds the lot owned by Spivey, even though the subsequent deeds throughwhich he derived title contained no such restriction. With the understanding that this contention distinctly embraces the idea of an intention to mutually benefit by the general scheme alleged, the lots sold as well as those retained by the grantor, and that this intention actuated both the grantor and the grantee, the legal proposition here relied upon by the appellant is well settled, was expressly recognized and approved by the lower court, and is not challenged by the appellee. 2 Min. Real Prop.. § 1119, p. 1215; Graves' Notes on Real Prop. § 262, and note; 5 Am. & Eng. Ency. L. (2d Ed.) p. 13: Korn v. Campbell, 192 N. Y. 490, 85 N. E. 687, 37 L. R A. (N. S.) 1, 3, 127 Am. St. Rep. 925; note, 37 L. R. A. (N. S.) 12, 27. In these authorities, and in the numberless others therein cited, will be found a full treatment of the reasons underlying the doctrine, and many learned discussions of the subject, involving much nicety of distinction in individual cases. It would be vain to undertake to review these authorities. The general principles applicable to this case are settled, and we content ourselves by the mere citation of some of the leading authorities on the subject. The sole point of controversy upon this branch of the case is whether, the complainant has borne the burden of establishing by satisfactory and sufficient evidence the fact that the restriction in the original deed for lot 443 was inserted therein as a part of the alleged general plan.

The evidence is quite voluminous, and a detailed recital of it would be cumbersome and unprofitable. The learned judge of the lower court, as appears from his written opinion, gave a patient and laborious consideration to the testimony of the witnesses, and to the deeds, plats, and other documentary evidence throwing light on the question of the existence of the alleged general plan, and reached the conclusion that the proof was insufficient to establish the contention of the complainant with respect thereto. In this conclusion we concur.

Courts of equity will enforce restrictive covenants in conveyances of real estate where the intention of the parties is clear in creating them, and the restrictions are reasonable. But they are not favored, and will not be aided or extended by implication. See Hutchinson v. Ulrich, 145 111. 336, 34 N. E. 556, 21 L. R. A. 391; 11 Cyc. 1077. Compare Virginian Ry. Co. v. Avis, 124 Va. 711, 718, 98 S. E. 638. The burden rests upon the person relying on such a covenant to bring himself within its terms. These principles apply with especial force to persons who are not parties to the instrument containing the restriction. 5 Am. & Eng. Ency. L. (2d Ed.) p. 11; Hensley v. Marlborough House Co., 62 N. J. Eq. 164, 50 Atl. 14; McNichol v. Townsend, 73 N. J. Eq. 276, 67 Atl 938; Lowell Inst., etc., v. Lowell, 153 Mass. 530, 27 N. E. 518; and (by analogy) People's Pleasure Park Co. v. Rohleder, 109 Va. 439, 445, 61 S. E. 794, 63 S. E. 981.

In order for the restriction to operate as between subsequent grantees of different adjacent lots or parcels of the same original tract, it must appear from the instrument expressly, or by a fair interpretation thereof, that it was inserted for that purpose; otherwise it will be assumed that it was intended by the parties to the original deed to inure only to the benefit of the grantor, or his heirs and assigns. Jewell v. Lee, 14 Allen (Mass) 145, 92 Am. Dec. 744.

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