Summers v. Beeler

• Decision Date: 09 December 1899
• Citation: 45 A. 19,90 Md. 474
• Parties: SUMMERS et ux. v. BEELER et ux.
• Court: Maryland Court of Appeals

45 A. 19

90 Md. 474

SUMMERS et ux. v. BEELER et ux.

Court of Appeals of Maryland

December 9, 1899

Appeal from circuit court, Washington county, in equity; Edward Stoke, Judge.

Action by Otha L. Summers and wife against Henry H. Beeler and wife. From an order dissolving a preliminary injunction, plaintiffs appeal. Affirmed.

Argued before MCSHERRY, C.J., and FOWLER, BOYD, PAGE, SCHMUCKER, and PEARCE, JJ.

D. W Doub, for appellants. A. C. Strite, for appellees.

PEARCE J.

This is a bill in equity filed by the appellants to restrain the appellees from erecting upon their own premises, adjoining those of the appellants, a bay window, in violation, as the appellants claim, of restrictions contained in conveyances for their respective premises from a common vendor, to whom their titles are traced through mesne conveyances. A preliminary injunction was granted, and was dissolved upon hearing, and thereupon this appeal was taken.

Rev. C L. Keedy being the owner of a tract of land in Hagerstown, on the east side of Mulberry street, laid out the tract into 28 lots, 14 of which fronted on Mulberry street, and 14 extended back eastward, fronting on King street, as shown in the accompanying plat, which was recorded among the land records of Washington county, but without anything thereon, or in the description of the lots which accompanied the plat, to indicate any restrictions upon the use of the lots, or any of them. In the subsequent sale and conveyance of these lots fronting on Mulberry street, certain restrictions as to the building line to be observed were inserted in some of the deeds, while in others there were no restrictions whatever. Lots 1, 2, 14, 3, and 5 were the first sold, and in the order named, without any restriction as to their use. These conveyances were all made between June 28, 1888, and November 23, 1888. Lot 5 was conveyed to C. P. Mason and W. M. Keedy and the first house built upon any of the lots was erected here in the spring of 1889, standing back eight feet from the east line of Mulberry street. On No. 1, a church has been built, with a covered vestibule extending beyond the eight-foot line. On No. 2, three dwellings have been built each with a two-story bay window extending beyond the eight-foot line. On lots 7, 10, and 14, houses have been built, each with a one-story front porch extending beyond the line. On lot 8 a house was erected in 1889, the front wall of which is on the eight-foot line, with an inclosed porch, making it a one-story bay window, extending beyond the line. All the other houses on the Mulberry street lots have steps extending beyond the eight-foot line. All these lots, except 1, 2, 14, 3, and 5, were sold and conveyed with substantially the same restriction as to building; that is, "that no building or other improvement shall be located, built, or constructed upon said lot closer to the west marginal line thereof than a line running parallel thereto, and bounding the west wall of the house owned by C. P. Mason and Wm. M. Keedy upon lot No. 5." No. 11 is owned by Mrs. Summers, one of the appellants; and No. 10, by Mrs. Beeler, one of the appellees, who is now building a house thereon, with a bay window extending three feet beyond the line of the Mason and Keedy house on No. 5, to which she is limited by the original conveyance of her lot No. 10, and the appellants are seeking to restrain the erection of this bay window. Lot 11 was originally conveyed to the Danzer Lumber Company by deed dated January 2, 1890, containing the restriction above mentioned; and the title thereto has passed to Mrs. Summers by mesne conveyances, each of which refers to the restriction in the original deed. Lot 10 was originally conveyed to Norman B. Scott by deed dated December 16, 1890, with the same restriction; and the title thereto has in like manner passed by mesne conveyances to Mrs. Beeler, each conveyance referring to the original restriction.

EAST BALTIMORE STREET. KING STREET. ANTIETAM STREET. SOUTH MULBERRY STREET. --------------------------------------------------- 15 14 No restriction. Porch extending beyond line. --------------------------------------------------- 16 13 Restriction. --------------------------------------------------- 17 12 Restriction. --------------------------------------------------- 18 11 Restriction. Plffs' Lot. --------------------------------------------------- 19 10 Restriction to west wall of house on 5. --------------------------------------------------- 20 9 Restriction. --------------------------------------------------- 21 8 Restriction. 2nd house built. Bay window. --------------------------------------------------- 22 7 Restriction to line of house already built. --------------------------------------------------- 23 6 Restriction. --------------------------------------------------- 24 5 No restriction. 5th house built. --------------------------------------------------- 25 4 Restriction to building line of 3 and 5. --------------------------------------------------- 26 3 No restriction. --------------------------------------------------- 27 2 No restriction. --------------------------------------------------- 28 1 No restriction. ---------------------------------------------------

In Halle v. Newbold, 69 Md. 270, 14 A. 663, this court reviewing the cases of Thruston v. Minke, 32 Md. 487, Whitney v. Railway Co., 11 Gray, 359, and Clark v. Martin, 49 Pa. St. 289, says: "These cases conclusively settle the law that a grantor may impose a restriction in the nature of a servitude or easement upon the land that he sells or leases, for the benefit of the land that he still retains; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, it may be enforced by the assignee of the grantor against the assignee (with notice) of the grantee." The court observed that in each of the cases reviewed the grantor imposed the servitude upon the land he sold, in favor of the land he retained, while in the case then before the court the grantors imposed the condition upon the land they retained, in favor of the land they sold; but the court said "the principle in both cases is the same." But the case now before us does not fall within either class of cases mentioned. Mr. Keedy sold and conveyed the plaintiffs lot No. 11 January 2, 1890. He had then sold and conveyed eight lots (Nos. 1, 2, 14, 3, 5, 9, 8, and 6), the first five without restriction, and the last three with the restriction mentioned, and he imposed upon the grantee of lot 11 the same restriction; but he imposed no servitude upon the land he retained, which embraced lot 10, in favor of the land he then sold, lot No. 11. He sold and conveyed the defendants lot No. 10 December 16, 1890, and he imposed the same restriction upon that lot which he had imposed upon lot 11. But this restriction cannot inure to his benefit, as respects lot 11, upon the principle stated in 69 Md., and 14 Atl., because he had sold lot 11 nearly a year before; nor can it inure to the benefit of the plaintiff, upon that principle, as owner of lot 11, because there is no privity either of contract or estate between the plaintiff and the defendant. In Mulligan v. Jordan (N. J. Ch.) 24 A. 543, it was held that a purchaser of a lot, whose deed contains a covenant against the erection of any building within a certain distance of the curb line, cannot maintain an action against a subsequent purchaser of an adjacent lot from her grantor, for violation of a like covenant, when there was no such covenant between the two purchasers, and their grantor, although he required similar covenants from all purchasers, did not covenant with the first that he would exact them from subsequent purchasers. The chancery court of New Jersey is a court of high repute, and has dealt with numerous questions of this character; and the facts of the case cited above are so closely analogous to the facts of this case that we cannot do better than adopt the following language from that opinion: "The complainant's deed is prior to that of the defendant. There is no covenant to the complainant from Mr. Roberts, the grantor, that he holds the remainder of the property subject to the same restrictions, or that he will exact similar covenants from purchasers of the remaining property; nor is the complainant the express assign of defendant's covenant with Mr. Roberts; nor is there any covenant between the plaintiff and the defendant. The right of an owner of a lot to enforce a...