Stowe v. Briggs

• Decision Date: 27 February 1970
• Citation: 451 S.W.2d 152
• Parties: Ethel STOWE et al., Appellants, v. William H. BRIGGS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 152

451 S.W.2d 152

Ethel STOWE et al., Appellants, v. William H. BRIGGS et al., Appellees.

Court of Appeals of Kentucky.

Feb. 27, 1970.

Robert W. Dickey, Bell, Orr & Reynolds, Bowling Green, for appellants,

G. D. Milliken, Jr., Bowling Green, for appellees.

DAVIS, Commissioner.

The judgment on appeal granted an injunction forbidding construction of a multi-family apartment building as being violative of restrictive covenants applicable to a subdivision in Bowling Green. Prior litigation concerning the restrictions in the same subdivision was dealt with in Smith v. Tygrett, Ky., 302 S.W.2d 604, but the decision there is not dispositive of the present controversy.

The subdivision in question was once the 130-acre farm of the late Judge R. C. P. Thomas. In 1945 Ogden College, devisee of the land, filed a plat reflecting the subdivision of a part of the farm. This plat had no accompanying restrictions and included only the lots in Blocks A through F, all lying north of Logan Avenue.

On September 10, 1949, another plat was recorded reflecting the subdivision of the entire original farm. The latter plat included Blocks G through L, as well as Blocks A. through F of the original plat.

The appellees, plaintiffs in the trial court, own Lot No. 11--A in Block F of the original plat, having acquired title to it by deed recorded September 20, 1948, (nearly a year before the second plat was recorded). The deed contains eight restrictions, the pertinent ones of which are:

(1) This lot shall be known and described as a residential lot. No structure shall be erected, altered or permitted to remain on this lot other than one single family or two-family dwelling, not to exceed two and one-half stories in height and a private garage for not more than three cars.

(2) (Provides set-back line not closer than 50 feet from front lot line, nor closer than 25 feet to any side street line, or side lot line.)

(7) These protective covenants are to run with the land until 1970, and they may be enforced by any property owner of a lot of the original Thomas tract containing these or similar covenants.

(8) As there are adjacent or nearby lots being sold for residential purposes, the plans for the residence to be erected on this lot shall be submitted to the grantor for his approval before the building is commenced so that they will be advised as to whether or not there are any objections to same which would interfere with the plans of the subdivision.

On December 31, 1949, certain restrictions were filed by the Regent and Trustee of Ogden College, purportedly applicable to the entire 130 acres of the Thomas Subdivision. These restrictions were somewhat different from those in appellees' deed just quoted. For example, the first restriction of the 'Master Restrictions' filed December 31, 1949, merely recites:

'All lots in this subdivision shall be known and described as residential lots.'

Restriction 8 of the 'Master Restrictions' provides:

'These protective covenants are to run with the land until December 31, 1970, and they shall be enforcible by injunctive relief or other appropriate remedy by the grantor herein (sic) or any property owner whose property is embraced in this subdivision.'

Originally, there were two sets of plaintiffs in the trial court, namely, appellees Briggs and Dr. and Mrs. Frank H. Moore. The trial court dismissed the complaint insofar as Dr. and Mrs. Moore were concerned on the basis that the restrictions appearing in the deed to them expired by their own terms in 1965. The Moores have not perfected any appeal from that ruling, so we are not further concerned with that aspect of the case.

The complaint and five amendments to it, considered with admissions in the answers, establish that the effort of the plaintiffs was to enjoin the construction of a 208-unit apartment complex on various parcels of the subdivision, all of which lie south of Logan Avenue (within the area not platted originally). The specific parcels on which the apartment complex is proposed to be built include a tract of 3.91 acres designated as the Sublett Tract, plus Lots 1/2, 1, 13, 14, 15, and 16 of Block I and Tract X and Lot 9 of Block J. There is controversy as to whether Lot 8, Block J, is part of the proposed building site.

In disposing of the litigation in the circuit court, the trial judge rendered an opinion in which the reasons for his conclusions were expressed, and which we summarize:

Relief was denied to plaintiffs, Dr. and Mrs. Moore, because their lot 'was severed from the 130 acre tract before the establishment of the subdivision, and the building restrictions imposed thereon expired in 1965.' From this, the trial judge concluded that Dr. and Mrs. Moore had no standing to enforce any building...